Monday, 28 October 2013

Several Bar Association all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they will not defend a particular person or persons in a particular criminal case. Sometimes there are clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.

In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.

We may give some historical examples in this connection.

When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet `The Rights of Man' in defence of the French Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepts the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today :

&quot;From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law 7

make all assumptions, and which commands the very Judge to be his Counsel&quot;

Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the I.N.A. trials in the Red Fort at Delhi (November 1945 - May 1946).

However, disturbing news is coming now from several parts of the country where bar associations are refusing to defend certain accused persons.

The Sixth Amendment to the US Constitution states &quot;In all criminal prosecutions the accused shall enjoy the right .......to have the assistance of counsel for his defence&quot;.

In Powell vs. Alabama 287 US 45 1932 the facts were that nine illiterate young black men, aged 13 to 21, were charged with the rape of two white girls on a freight train passing through Tennessee and Alabama. Their trial was held in Scottsboro, Alabama, where community hostility to blacks was intense. The trial judge appointed all members of the local bar to serve as defense counsel. When the trial began, no attorney from the local bar appeared to represent the defendants. The judge, on the morning of the trial, appointed a local lawyer who undertook the task with reluctance. The defendants were convicted. They challenged their convictions, arguing that they were effectively denied aid of counsel because they did not have the opportunity to consult with their lawyer and prepare a defense. The U.S. Supreme Court agreed. Writing for the court, Mr. Justice George Sutherland explained :

&quot;It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid.....&quot;

In the same decision Justice Sutherland observed: &quot;What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense&quot;.

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In this connection we may also refer to the legendry American lawyer Clarence Darrow (1857-1930) who was strongly of the view that every accused, no matter how wicked, loathsome, vile or repulsive he may be regarded by society has the right to be defended in court. Most lawyers in America refused to accept the briefs of such apparently wicked and loathsome persons, e.g. brutal killers, terrorists, etc. but Clarence Darrow would accept their briefs and defend them, because he was firmly of the view that every persons has the right to be defended in court, and correspondingly it was the duty of the lawyer to defend. His defences in various trials of such vicious, repulsive and loathsome persons became historical, and made him known in America as the `Attorney for the Damned', (because he took up the cases of persons who were regarded so vile, depraved and despicable by society that they had already been condemned by public opinion) and he became a legend in America (see his biography `Attorney for the Damned').

In Re Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of the US Supreme Court in his dissenting judgment praised Darrow and said :

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&quot;Men like Lord Erskine, James Otis, Clarence Darrow, and a multitude of others have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.&quot;

At the Nuremberg trials, the Nazi war criminals responsible for killing millions of people were yet defended by lawyers.

We may also refer to the fictional American lawyer Atticus Finch in Harper Lee's famous novel `To Kill a Mocking Bird'. In this novel Atticus Finch courageously defended a black man who was falsely charged in the State of Alabama for raping a white woman, which was a capital offence in that State. Despite the threats of violence to him and his family by the racist white population in town, and despite social ostracism by the predominant while community, Atticus Finch bravely defended that black man (though he was ultimately convicted and hanged because the jury was racist and biased), since he believed that everyone has a right to be defended. This novel inspired many young Americans to take up law as a profession in America.

The following words of Atticus Finch will ring throughout in history :

&quot;Courage is not a man with a gun in his hand. It is knowing you are licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.&quot;

In our own country, Article 22(1) of the Constitution states : &quot;No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice&quot;.

Chapter II of the Rules framed by the Bar Council of India states about `Standards of Professional Conduct and Etiquette', as follows : &quot;An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief&quot;.

Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in 1 passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country.

It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

Sunday, 27 October 2013

“Sar Zameen-e-Hind par aqwaam-e-Alam ke FiraqQafile guzarte gaye, Hindustan banta gaya” --Firaq GorakhpuriSome people in one State in India propounded the son-of-the soil (bhumiputra) theory. They assaulted people of other states and vandalized their property.

When a case came before a bench of the Supreme Court of which I was a member I orally observed in court that we cannot permit balkanization of the country.

Article 19 (1) (e) of the Indian Constitution states:“All citizens shall have the right – (e) to reside and settle in any part of the territory of India.”

Thus it is a fundamental right of a person who is a native of State A to migrate to State B, and people in State B cannot say that since the person is not a bhumiputra of State B he is an ‘infiltrator’ and should be driven out. In practically every State in India there are people who were natives of other states, but had come there for trade or job opportunities or some other reason. By virtue of Article 19 (1) (e) they have a fundamental right to migrate to and settle down in any other state. It would be unconstitutional to prevent persons from migrating and settling at places where they find their livelihood vide 1997 (3) Guj L R 1998 (2012) SC. The only exceptions are Kashmir and the Northeast due to special historical reasons.

India is one country, and the bhumiputra theory is totally unacceptable.

India is one country with one nationality - Indian. Those who regard Maharashtra as a separate nation are traitors to the nation, and should be given harsh punishment. In view of Article 19 (1) (e) of the Constitution, it is a fundamental right of non-Maharashtrians to settle in Maharashtra, just as it is a fundamental right of Maharashtrians to migrate and settle in UP, Bihar, Tamil Nadu, West Bengal, Punjab, etc. Of course, if any particular non-Maharashtrian has done something illegal in Maharashtra, he can be penalised. But how can all Biharis be branded 'infiltrators' for some wrong done by other Biharis?

The 'son of the soil' theory is a theory of Balkanization of the country, and must be condemned. Those who have propounded it are not really concerned about the welfare of the people of Maharashtra; they are concerned about their vote bank.

India is broadly a country of immigrants, like the US. About 92-93% people living in India today are not the original inhabitants of India. The original inhabitants are only the pre-Dravidian tribals known as adivasis e g Bhils, Gonds, Santhals, Todas, etc; they form just 7-8% of the Indian population today.

If the 'son of the soil' theory is implemented, 93% of Maharashtrians would also have to leave Maharashtra, because they are also not sons of the soil. The only sons of the soil are the Bhils and other tribals living in Maharashtra. This shows that the theory may be fine for capturing votes, but it would lead to chaos and disaster if any serious attempt is made to implement it.

Also, the unity of India is required if our country is to prosper economically. Article 301 of the Constitution states that trade and commerce shall be free throughout the territory of India. This provision guarantees the economic unity of India, and political unity depends on economic unity. Thus, a factory in Tamil Nadu is entitled to sell its goods in UP, Bihar, Maharashtra, Punjab, Bengal, etc.

Modern industry requires a large market. And unless modern industry emerges in India, we cannot be a prosperous nation, because agriculture alone cannot generate the wealth required for our people's education, health, employment and so on. Only united India provides such a large market. Any attempt to break up our country will therefore doom our people to poverty.

It could also be said that the 'son of the soil' theory offends section 2 of the Prevention of Insults to National Honour Act, 1971. And being disrespectful of or bringing into contempt the Constitution of India is a criminal offence punishable by up to three years imprisonment or fine or both. Not just does the theory disrespect and bring into contempt Article 19 (1) (e) of the Constitution - hence becoming a crime - it is also an offence under section 153A of the IPC as it amounts to inciting enmity between groups of people.

Assuming that some Bihari authorities did something wrong, does it justify branding all Biharis as infiltrators in Maharashtra? Two wrongs do not make a right. The remedy, if some illegality is committed by a Bihar authority, is to file a writ petition in the Patna High Court or the Supreme Court and not to threaten Biharis living in Maharashtra. Most Biharis living in Maharashtra are poor people who have come to Maharashtra for earning their livelihood.

Also, if Biharis are chased out of Maharashtra, Maharashtrians living outside Maharashtra may meet the same fate. Where will all this end? We saw what happened when rumours were spread which created panic among people from the Northeast living in Bangalore and elsewhere.

The time has come for the nefarious designs of such selfish politicians who only care for their vote bank, even if the country breaks up, to be exposed.

When I was a Judge in the Allahabad High Court a petition came up before a division bench (of which I was the senior member) in Mohd. Sharif Saifi vs. State of U.P., Writ Petition 43403/1998 decided on 28.1.1999.

The grievance of the petitioner was that he was not being allowed to build a mosque on his land, and hence Article 25 of the Constitution was being violated.

Agreeing with his contention, we allowed the petition and observed:“This is a free and secular country. Subject to public order, morality and health, anybody is entitled under Article 25 of the Constitution to build any house of worship, whether it is a mosque, church, temple, etc., on his own land or on anyone else’s land with the consent of that person.

Article 25 (1) of the Constitution states:“Subject to public order, morality and heath and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”.

Hence, we make it clear that the petitioner is fully entitled to make a mosque on his own land or on someone else’s land with the permission of that person, and if he does so the authorities will give him full protection, and take strong action against anyone interfering with the petitioner’s right. No permission of the D.M. is required for this.

However, we would humbly suggest to the petitioner and others concerned that instead of mosques, temples, etc., the country requires more schools, hospitals, technical institutions, vocational training institutes, etc., for the country’s scientific and technological development. Half of the population of the State is illiterate and a large number of young people wish to get technical training in order to get employment, and hence it is absolutely essential that there should be more schools, technical institutes, vocational training institutes, hospitals, etc., so that the country progresses, and the welfare of the people is attended to.

Hence instead of building temples, mosques, etc., we recommend to all people (including the petitioner) to consider our suggestion, and follow it if it appeals to them.

In this connection we may also mention that Article 51-A (h) of the Constitution makes it a fundamental duty of all citizens to develop the scientific temper.

However, we again make it clear that this is only our humble suggestion, and the petitioner is fully entitled to make a mosque on his own land, or on someone else’s land with his consent, and the authorities will give him full protection for doing so”.The decision of the Allahabad High Court, authored by me is a good example of the educative role of the judiciary, apart from its traditional adjudicatory role. In that decision while upholding the right of Muslims to build mosques, we appealed to Muslims not to do so, and instead build schools, technical institutes, hospitals, medical colleges, etc as that is what is required for the country's progress, not more temples, mosques, etc

Saturday, 26 October 2013

The above sher (couplet) of the great Urdu poet Mirza Ghalib, was used by me in my order in Budhadev Karmaskar vs. State of West Bengal, Cr.Appeal 135/2010 (see 'sex workers' on my blog justicekatju.blogspot.in).

"Near the nest was the hidden cruel net (of a hunter)Even before the chick could take its first flight it was caught".

In India perhaps there are 20 million or more sex workers (prostitutes). They have been driven into this profession not because they enjoy it but because of abject poverty. The massive poverty of about 80% of our population of 1200 million people is the real cause of exploitation of women. To fill their stomachs these poor girls have to sell their bodies. These girls should have had a life of happiness, but instead they get caught in the flesh trade because of their poverty at a very early age and their lives are ruined.

I have compared these innocent young girls to the chick which is caught in the net of a cruel hunter in its very first flight.

There are possibly millions of #SexWorkers (prostitutes) in our country. These girls come into the flesh trade not because they enjoy it but because of abject poverty. They become practically slaves of the brothel owners, and are pitilessly exploited, and often brutally treated. Once they enter the flesh trade they became social outcastes for the so called ‘decent’ society.Surely it cannot be said they enjoy a life of dignity envisaged by Article 21 of the Constitution.

Buddhadev Karmaskar vs. State of West Bengal, Criminal Appeal No. 135 of 2010 was a case which came up before a bench of the Supreme Court of which I was the senior member. The appellant had brutally killed a sex worker, and we upheld his conviction. However, having dismissed the appeal, we suo motu converted it into a P.I.L. for rehabilitating sex workers.

We were of the view that if sex workers were given some technical training they could earn their bread through this technical skill, instead of by selling their bodies. Hence we directed the Central and State Governments to prepare schemes for rehabilitating the sex workers, and we also set up a Committee, headed by a senior lawyer of the Supreme Court, to monitor this exercise. The case is still going on.

#Urdu poetry has, among other qualities, a unique feature. An Urdu verse can be given a meaning by the reader which was never intended by the writer. Surely #Ghalib, when he wrote the above couplet, never thought it could be applied to sex workers !

I have sometimes been asked which was the most difficult case I found to decide, and my answer usually is: Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamaat, 2008.

Usually I did not have difficulty in deciding cases, because having spent 40 years in the legal world, 20 years as a lawyer and 20 years as a Judge, I am broadly conversant with legal principles. However, in this case I found it very difficult to make up my mind.The Senior Judge on the bench, Justice H.K. Sema, had asked me to write the judgment after we had heard arguments and reserved the judgment, but for several weeks I just could not decide what view to take.

The facts of the case were that the Ahmedabad Municipality in Gujarat had for several years passed resolutions for closing down the Municipal slaughterhouse during the 9 days Jain Paryushan festival. Since goats, lamb and other animals could legally be slaughtered only in the Municipal slaughterhouse (for sanitation, hygiene, etc) the result was that for 9 days in a year people of Ahmedabad had to be vegetarians.

The butchers association of Ahmedabad challenged this resolution before the High Court on the ground that it violated their fundamental right of freedom of trade and business guaranteed by Article 19 (1) (g) of the Constitution. The residents of Ahmedabad pleaded that this resolution compelled them to become vegetarians for 9 days in a year, and this violated their right of privacy which had been held to be part of Article 21 in several decisions of the Supreme Court.

Jains are a community who follow the teachings of Lord Mahavir and other ‘Tirthankaras’. They believe in Ahimsa or non-violence, and are strict vegetarians.

The Paryushan festival is perhaps the most important one for Jains. During the 9 days period of the festival Jains do fasting and other spiritual acts e.g. recitation of their scriptures.

There is a large Jain community in Western India e.g. Gujarat, Rajasthan, Western Madhya Pradesh, Delhi etc. For several years the Ahmedabad Municipality had closed its slaughterhouse during Paryushan, and this was now challenged. The High Court allowed the writ petition, and the matter came up on appeal before us in the Supreme Court.

The petitioners before the High Court (respondents before us) alleged that the impugned resolutions of the Ahmedabad Municipality closing down the Municipal slaughterhouse during Paryushan was an unreasonable restriction on the rights of the butchers of Ahmedabad (the writ petitioners) to carry on trade and business in livestock, mutton etc. It was also a violation of the right of non vegetarians to eat meat. What one eats is part of one’s right to privacy, which by judicial interpretation has been included in Article 21 of the Indian Constitution.

As mentioned above, for several weeks after reserving judgment in the case I could not make up my mind what view to take. There was certainly a case in support of the contentions of the writ petitioners (the butchers and non-vegetarian section of society), which had been upheld by the High Court. After all, it is one’s personal business what one eats. Why should a non-vegetarian be compelled to become a vegetarian, even if for 9 days? Nobody was compelling the Jains or other vegetarians to become non-vegetarians. Why then should it be vice versa?

This argument at first appealed to my mind. I am a strong votary for freedom, and the impugned resolution seemed to violate the rights of the butchers as well as non-vegetarians.However, ultimately I decided to uphold the validity of the resolution and reverse the judgment of the High Court.

What persuaded me to do so were these factors:

(1) The restriction was only for a short period of 9 days. Had it been for a longer period, say, for several months, I would certainly have held it to be violative of Articles 19 (1) (g) and 21 of the Constitution.

(2) There is a large Jain community in Western India, including Ahmedabad, and in a country like India with such tremendous diversity of religions, castes, languages, ethnic groups, etc we must respect the feelings of all communities.

(3) The restriction was not a new one, but had been imposed every year for several decades. Reference was made in the judgment to Emperor Akbar and his respect for the Jains.

Taking all these considerations cumulatively we upheld the restriction as being a reasonable one. We referred to the Constitution Bench decision of the Supreme Court in State of Madras vs. V.G. Row, 1952 in which the broad tests for determining reasonableness were indicated. One of the tests laid down therein was whether the restriction was excessive. In the present case we noted that the closure of the slaughterhouse was only for a short duration of 9 days in a year, and hence it was not excessive. We also referred to the decision of the Supreme Court in Government of Andhra Pradesh vs. P. Laxmi Devi, 2008 in which it was held that the court should exercise judicial restraint while judging the constitutional validity of statutes, and the same principle would apply while adjudicating the constitutional validity of delegated legislation.Read the complete judgment here.

Once a person becomes a major according to the Indian Majority Act, 1875 (which is 18 years of age, vide Section 3) he/she is deemed by the law to know what is in his/her interest. Hence after crossing the age of 18 years no one can legally prevent a person from marrying a person of his/her choice.

In Lata Singh vs. State of U.P., 2006 the facts were that the petitioner fell in love with a young man of a different caste. This very much angered her brothers who started harassing the couple in various ways, because of which she had to leave Lucknow where she had been living. In the petition which came up before the Supreme Court in a bench of which I was a member we observed:

“This is a free and democratic country, and once a person becomes a major he or she can marry whomsoever he/she likes. If the parents of the boy or girl do not approve of such inter caste or inter religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or inter religious marriage”.

We directed the administration and police to prevent harassment or violence on such couples, and those who do so should be criminally prosecuted.

In my view the right to marry a person of one’s choice is a part of the right to privacy, which has by judicial interpretation been held to be part of Article 21 of the Constitution.

In Arumugam Servai vs. State of Tamil Nadu, 2011, the Supreme Court condemned the shameful practice of ‘honour killing’ in some parts of India, of young couples who enter into an inter caste or inter religious marriage against the wishes of their parents or other relatives or caste/community members. We directed criminal prosecution of those who commit such crimes, and suspension of the administrative or police officers who do not prevent them.

Article 25 (1) of the Indian Constitution states: “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”

I have always been a supporter of the rights of religious minorities in India, because I firmly believe that a mark of a civilized society is that minorities therein can live with dignity and respect.

Christians are only about 2% of the 1.25 billion people in India. In January 2009 a case came up before a bench of the Supreme Court of which I was a member, in which the allegations were that Christians in Orissa were being persecuted by right wing Hindu groups. It was alleged that about 50,000 Christians had fled from their homes, some had been killed, their houses burnt, and they were living in camps or in the jungle.

During the hearing of the case I remarked “We will not tolerate persecution of minorities. If the state government is unable to protect them it should resign. Article 25 of the Indian Constitution guarantees freedom of religion to all”.

These oral observations had their effect, and the persecution of Christians in the State stopped, and compensation was awarded to those whose properties had been destroyed or damaged.

When I was a Judge of the Allahabad High Court a case came before me pertaining to some village in U.P. In that village the majority consisted of Muslims, while the minority were Hindu Harijans. A Harijan girl was gang raped by some Muslim boys, who were prosecuted. I awarded the accused harsh punishment, holding that since Muslims were in the majority in that village it was their duty to see to it that Hindus could live with dignity and respect, but the accused did just the opposite.

In India Hindus are a majority out of the total population, but they may be a minority in a specific area. It is the duty of the majority in every specific area to ensure that the minority lives with dignity and respect. So it is not only Muslim and Christian minorities whom I have sought to protect, but also Hindus where they are in a minority in a particular area.

Thursday, 24 October 2013

The Separation of Powers principle[1],
propounded by the French political thinker Montesquieu, has been elaborately
discussed in my judgment in Divisional
Manager, Aravali Golf Course v. Chander Haas (2008) 1 SCC 683 (vide paragraphs
(17 to 40). Judicial activism is basically a deviation from this principle.
Judicial activism is based on the theory of Jurisprudence called Sociological
Jurisprudence, which arms the judiciary with wide legislative and executive
powers.

We
may therefore come directly to the subject of judicial activism, where many
difficulties have arisen.

Introduction

The
common ancestor of both the U.S. and Indian judiciary is the British
judiciary. Hence both the countries are
indebted to the British legal system for many of their principles and
institutions.

In
England,
since Parliament was supreme and there was no written Constitution, the
traditional approach of the British Judges was only to apply the law made by
Parliament to the facts of a particular case, and thereby reach to a decision
based on that law. “Law is the command
of the sovereign” said Austin, and since in England the
sovereign was Parliament, law was what was made by Parliament, not the
Judges. Thus, the British Judges were
subservient to Parliament, and were not expected to be activist. The separation of powers theory of the French
writer Montesquieu said that law making
was the job of the legislature, and taking administrative and policy decisions
was the job of the executive. Judges
were expected to be like a referee in a football match, who was only to see
that the rules were followed, but was not to himself take part in the match nor
advise the players how to play. The
literal rule of interpretation was followed with particular emphasis in England, since to depart from it would amount to
thwarting the will of Parliament, which was supreme in England’s
unwritten Constitution.

This
approach was in accordance with the positivist school of jurisprudence
propounded by the British jurists Bentham and Austin, who placed the centre of
gravity of the legal system on statutory law, that is, law made by the
legislature.

In
contrast, sociological jurisprudence, which originated in Continental
Europe in the late 19th
century (see Bodenheimer’s ‘Jurisprudence’)
was developed in U.S.A. by Roscoe Pound, the realist school, etc. and sought
to shift the centre of gravity in the legal system from statute to judge made
law (see “Legal Theory’ by W. Friedman and “American Jurisprudence’ by James
Herget) .

We
are not going into the various theories of sociological jurisprudence, and we
need only comment that these theories would certainly have had an impact on
many of the judges of the U.S. Supreme Court.

The
traditional understanding of the judicial process is that while the legislature
makes laws and the executive implements them, the judiciary’s function is only
to interpret and apply the law to the facts of a particular case.

As
an organic document, a written Constitution chiefly performs two main tasks- firstly, it sets up the organs of governance, and secondly, having set up these
institutions, it provides a recourse against the abuse of power by these
organs.

India and the United States of America
are both no exceptions to this rule. There are certain fundamental similarities
in the legal set-up of both countries. As former colonies of Great Britain,
they both inherited a common law system, and (at varying times) a deep distrust
of any organ of government not having requisite checks and balances. As a
result, the written Constitutions of both countries, though differing greatly
in length (the Indian Constitution is the longest one in the world, whereas the
American Constitution is one of the shortest) -- contain a number of
similarities. Both have a set of Constitutional Rights based on the Natural
Rights model of John Locke that assume primacy -- the Bill of Rights in the
American Constitution, and the fundamental rights in Part III of the Indian Constitution. Both Constitutions are also federal, though,
to understand the Indian concept of federalism, it may be noted that India’s
Constitution has been described as being `quasi-federal’ having a “strong
unitary bias”. Furthermore, both Constitutions guarantee equality, freedom of
speech and religion, and life and liberty through their respective chapters on
inalienable rights.

It is important to note that both
societies are also fundamentally similar. India and the United States of
America have immense diversity of every kind -- climate, land, language and
people. In India there are so many castes, religions, languages, ethnic groups,
etc In countries of such diversity, Constitutional texts create an immense
binding force by their guarantees of equality, secularism and federalism. However, in doing so, the judiciary is
frequently called upon to play a pro-active role in cases of disputes, or
contested interpretation of rights. In such a situation, it is tempting for the
judiciary in the garb of the sole interpreter of these rights, to play a larger
role in the governance of a country than is strictly required by the law. In
this paper, it is proposed to examine how the judiciary of both India and the United States, have looked at this
power, and what pitfalls may emerge when ‘judicial activism’ becomes ‘judicial
adventurism’.

JUDICIAL
ACTIVISM AS A PHILOSOPHY:

The expression `judicial activism’ is
often used in contrast to another expression `judicial restraint’.

As an ideology of the judicial process,
‘judicial activism’ implies the “use of the court as an apparatus for
intervention over the decisions of policymakers through precedent in case law.”[2]
In doing so, the Court often creates law and seeks to play a greater part in
the governance of a country through “allowing their personal views about public
policy”[3]
to aid them in their decisions. The role
of judges in such cases goes beyond the traditional “interpretative” role that
has been assigned to them, and shifts to a model by which judges seek to make
law, encroaching on the Separation of Powers doctrine, which forms the bedrock
of the Indian and United
States constitutional system. When a Court strikes down a law in an
“activist” manner, it places primacy upon its interpretation of a constitutional
text, sidelining the opinion of the legislature or executive.

Not surprisingly, judicial activism has
been extremely controversial from its very beginning. Opinions are divided as
to whether an unelected body should exercise such power, and whether in doing
so has the right to supersede an elected legislature. The extent to which the
use of the term itself provokes such dislike from its detractors can be seen by
the immediate branding of an opinion one dislikes as an example of judicial
activism.[4]
Its supporters, on the contrary, argue that being an unelected body may give
the Court greater wherewithal in making decisions with regard to the
enunciation of individual rights which the legislature for some reason may be
unable or unwilling to do.

This may be explained by a case of the
Irish Supreme Court, McGee v. The Attorney General and Revenue
Commissioner[5],a case in which the validity of an
archaic Irish law against the sale and import of contraceptives in a strongly
Catholic country was challenged.

The facts of the case were that an Irish
lady Mrs. Mary McGee, had four children, and her doctors advised her that it
was dangerous to have another pregnancy.
She imported contraceptive jelly from England, but when that landed on
the Irish coast it was seized by the Irish Customs Authorities in view of the
Irish law against the import and sale of contraceptives.

The problem was that no Irish politician
dared to bring a bill to repeal the outdated and archaic law against the import
and sale of contraceptives out of fear that if he did so the Catholic Church
would use its enormous influence to destroy the political career of that
politician.

Before the modern era almost every woman
had 15 to 20 children because there were no contraceptives then. Of course most of these children died at
childbirth or at a tender age because medical science was not advanced at that
time.

In modern times most women prefer to have
one or two children. That is because on
each child a lot of time and money has to be invested. Hence the right of a woman to have sex
without having pregnancy is a basic norm, without which modern society cannot
function.

If a norm is required by a society for
its smooth functioning at a particular stage of its historical development, and
society cannot function without that norm, then that norm is bound to emerge in
some way or the other.

Normally legal norms emerge out of the
legislative process. But if the
legislature is paralyzed, or if for some reason it is unable to create that
legal norm, then that norm will emerge out of the judicial process (by judicial
legislation) or some other process, but emerge it will because society cannot
function without it.

In
Mary McGee’s case the Irish Supreme Court struck down s. 17 of the Act, which
outlawed the sale and import of contraceptives, as being violative of Article
40.3 of the Irish Constitution which said that the State is bound to protect
“the personal rights of the citizen”, in particular his “life, person, good
name and property”. There was no mention
of any right to privacy in Article 40.3, but by judicial interpretation it was
accepted as an unenumerated right included in “personal rights”. The same was
done by the U.S. Supreme Court in Griswold v. Connecticut (1965), and in India
vide X vs. Hospital Z, (1998) 8 S.C. 296 (para 28)

Other examples of judicial activism are
the decisions by the U.S. Supreme Court in Brown
v. Board of Education[6],
Miranda v. Arizona, and Roe v. Wade[7]
(modified in Planned Parenthood Association v. Casey, 1992), and of the
Indian Supreme Court in Maneka Gandhi’s
case (AIR 1978 SC 593) as well as its decisions relating to Article 21 of the
Indian Constitution, etc. We shall discuss
some of them below.

THE
AMERICAN EXPERIENCE WITH JUDICIAL REVIEW:

The power of judicial review is not
specifically mentioned in the US Constitution, but in the celebrated case of Marbury v. Madison,[8]
the US Supreme Court struck down part of the Judiciary Act, 1789, holding that
it violated the US Constitution. Thus the Court assumed that it had this power,
since a Constitution is the highest law of the land, and prevails over ordinary
statutes. The Court, however, continued to be very sparing in the use of this
power throughout most of the 19th century, only using it in the Dred
Scott decision in 1857. In 1811, the
Supreme Court of Pennsylvania said: “…an
Act of the legislature is not to be declared void unless the violation of the
Constitution is so manifest as to leave no room for reasonable doubt."[9]
In fact, Prof. James Bradley Thayer of Harvard University, one of the great
proponents of judicial restraint in an article published in 1893 in the Harvard
Law Review, argued for courts not to be hasty in striking down legislation, for
an activist court (though the phrase was not then invented) would “dwarf the political capacity of people (referring
to the legislature) and deaden their
sense of moral responsibility”.[10] Hence, he suggested that the judiciary should
exercise restraint and ordinarily defer to the will of the legislature, and
only strike down laws in a situation where by no means could these be
harmonized with the Constitution, and his philosophy of judicial restraint was
broadly followed by Justice Holmes, Brandeis, and Frankfurter. (It has also
been followed by the Indian Supreme Court in Government of Andhra Pradesh
vs. P. Laxmi Devi 2008(4) SCC
720.

This approach has also been followed by
Chief Justice John Roberts of the U.S. Supreme Court in the Healthcare case
decided in 2012 (National Federation of Independent Business vs. Kathleen
Sebelius, Secretary of Health) who upheld most of the Affordable Care Act on
the basis of the taxing power in Congress. Although the Act was really to
provide healthcare, it imposed a tax on those companies which did not provide
health insurance for its employees. The learned Chief Justice in that decision
followed the settled principle that if two views are possible, the one in
favour of upholding the Constitutional validity of the statute should be
adopted by the Court.

The problem, however, remained about
interpretation of the Constitution. The
Bill of Rights in the U.S. Constitution contain rights like freedom of speech,
liberty, freedom of religion, equality, etc. which can have different
meanings. Many problems arose while
interpreting these rights. For instance,
apart from the rights specifically mentioned in the Bill of Rights are there
any unenumerated rights e.g. the right to privacy which Courts can
recognize? What meaning should be given
to ‘freedom of speech’ and vague expressions like `due process’ in the 14th
Amendment? Does the word `liberty’
include liberty of contract? Should the ‘commerce
clause’ in Article 1 Section 8 be given a strict or expansive interpretation?

A word can have several meanings. As
Justice Holmes of the U.S. Supreme Court observed in Towne vs. Eisner 245 U.S.
418 (1918): “A word is not a crystal, transparent and unchanged; it is the skin
of a living thought, and may vary greatly in colour and content according to
the circumstance and time in which it is used.”

JUDICIAL
ACTIVISM OF THE U.S.
SUPREME COURT

There have been broadly two periods of
judicial activism by the US Supreme Court, the first being the laissez faire
activism from the end of the 19th Century upto 1937, and the second
being the era of the Warren Court, that is from 1953 to 1969 when Earl Warren
was the Chief Justice.

THE
‘LOCHNER ERA’: LAISSEZ-FAIRE ACTIVISM:

The early years of the 20th
century saw a spate of legislation in U.S.A. to protect workers from the
dreadful conditions that were then prevailing. These included Acts fixing
maximum hours of work for workmen in factories, minimum wages, and other
welfare measures. The US Supreme Court, however, regarded this “interference
with freedom of contract” as unconstitutional.
It interpreted the word ‘liberty’ in the 5th and 14th
Amendments as including liberty of contract, and thereby formulated, in the
last decade of the 19th century, a theory of “economic due process”
according to which it was essential that all measures restricting liberty of
contract be just, fair and reasonable, that is, in accordance with the due
process clause in the 14th Amendment. Under this theory it repeatedly struck down
labour legislation and economic regulatory rules.

A seminal case in this regard was that of
Lochner v. New York[11], where
the law in challenge was the Bakeshop Act, 1899, which imposed a maximum limit
of 60 working hours a week for bakery workers. Lochner, the owner of the
bakery, filed a suit in the Supreme Court arguing that his right to liberty of
contract under the 14th amendment to the Constitution was violated
by this law. While the Supreme Court had, eight years earlier, accepted such a
legislation with regard to miners,[12]
this time the Court was not as accommodating. Justice Peckham, speaking for the
majority, relied on the case of Allgeyer v.
Louisiana[13]
to hold that liberty would also imply economic liberty, namely, the freedom to
“…enter into all contracts which may be
proper, necessary and essential” for a person to live, work and earn his
livelihood.[14]
In doing so, he held that bakers were not wards of the state, and so had the
right to enter into any forms of contracts with their employers. Hence, an interference in this regard would
be considered to be an unreasonable exercise of state power. Further in his
judgment, he sought to affect a distinction between Lochner and Holden by
stating that, in contrast to a miner, the job of a baker was not unhealthier
than any other reasonable job. Hence, there could be no “real or substantial”
relation between the legislation and its object- to protect the health of
bakers.

The dissenting opinions (of which there
were two, one authored by Harlan, J. and the other by Holmes, J.) were strongly
against this explanation, though admittedly for different reasons. While
Harlan, J. argued that the legislation should be saved as it was enacted to
protect the physical well-being of those who worked in these establishments,
and adduced medical evidence to prove it, Holmes, J. had a more theoretical
argument against the decision. He criticized it on the grounds that the
Constitution was not made for a particular economic theory ( the laissez faire
theory) and could not be used to strike down legislation that judges would find
not to their liking. The legislature’s
wisdom could not be questioned merely because the Court subscribed to a
different view, or because it thought the legislation unwise. The scornful
dissent of Holmes to the majority view was contained in the famous line “the
Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”

The importance of this case, though it
was not the first one in this regard, can be seen from the fact that the
general tenor of decisions for the next thirty-odd years followed it, leading
to the entire era to be referred to as the “Lochner era” of the US Court. During
this period, the U.S. Supreme Court has been described as being “judicially
activist but politically conservative”[15].
The Court’s desire to promote laissez-faire capitalism, and its understanding
of economic and contractual freedom being the sole forms of such promotion,
meant that it ignored the inherent inequality between employers and workers.

In
these decisions the Court held that the word `liberty’ in the 14th
Amendment included liberty of contract, and was not restricted to personal
liberty (see in contrast Article 21 of the Indian Constitution in which the
word ‘personal’ has been used before the word ‘liberty’). The Court held that both employer and the
prospective employee are free to enter into any kind of contract. This view overlooks the fact that the liberty
of the worker is illusory. He is in a
disadvantageous position as compared to the employer, and if he does not accept
the terms of employment offered to him, however onerous, his alternative may
only be to starve.

It
is interesting that the Court, in its zeal to promote freedom of contract,
resolutely declined to worry about the ways these contracts could be used to
create a situation which increasingly resembled servitude. The case of Hammer v. Dagenhart[16]is an illustrative example, where the
Court struck down a legislation that banned interstate commerce of items that
were produced by children. The logic behind this, according to the Court was
that the “good” itself was not immoral (in contrast to earlier Acts that had
been upheld which pertained to lotteries) and that the manufacture of these
goods (in this case, cotton) did not come within the ambit of inter-state
commerce. Interestingly, Holmes, J. dissented strongly, though his dissent was
not to become law until 1941.[17]

A similar decision was handed down in
1923, in the case of Adkins v. Children’s Hospital[18]
where the power of the Congress to pass a law fixing a minimum wage was the
subject of dispute. This law had come about as a result of Congress’s powers to
maintain the health and safety of the citizens of the country. In deciding this
case, the Court referred to the Lochner precedent
to strike down this law, holding that there existed a difference between
minimum-wage laws and hours fixing maximum working hours, and that minimum wage
laws imposed an artificial restriction on the rights of the employer.
Disingenuously, the Court argued that the imposition of a minimum-wage law
would imply a corresponding need to fix a maximum-wage law as well. In doing
so, however, the Court seemed to ignore social realities. The paternalistic
attitude that had marked the Muller era
(see Muller vs. Oregon 1908) seemed to have disappeared, with the Court itself
saying that the “revolutionary changes” that had marked the fifteen years
between the two cases, including the extension of adult suffrage to women,
meant that such special measures could not be justified.

By the 1930s, however, it was obvious
that the Court had over-extended its reach. The advent of the Great Depression (after
the Wall Street Slump in 1929) meant that the laissez-faire doctrine that had guided the Court through much of the
preceding 40 years could no longer command the same reverence it had earlier.
The breaking point, however, came as a result of President Franklin Roosevelt’s
exasperation with what he considered to be the Supreme Court’s insistence on
striking down legislation that was essential to the New Deal.[19]
The President then sought to change the composition of the Court, proposing
appointment of an extra judge for each judge over 70 ½ years old. This attempt
to “pack” the Supreme Court through the introduction of the Judicial Reforms
Procedures Bill, 1937, lapsed, as the Court deferred to legislative intent. The
first case that is widely considered to mark the ebbing of the tide of
“activist” judgments was the case of West
Coast Hotels v. Parrish[20], where Justice Owen Roberts is widely
perceived to have[21]
“switched” sides, upholding the constitutionality of a minimum wage statute for
women, thereby going against previous precedent.[22]
This “switch in time which saved nine” marked the end of the first phase of
judicial activism, and largely put an end to the ‘economic due process’ theory
of the Court, and thereafter the Court switched from Laissez Faire to Keynesian
economics.

The Lochner Era, while being against the
working class and against economic regulation, was, however, also characterized
by judicial activism in the field of individual liberties, largely through
Justice Holmes theory of `clear and present danger’ in Schenck v. U.S, 249 U.S. 47(1919). This was subsequently
diluted and practically overturned in Dennis
v. U.S., 341 U.S. 494(1951), but there was some degree of return to the
Holmesian doctrine later.

JUDICIAL
ACTIVISM IN THE US:
THE SECOND PHASE

The US Supreme Court’s next activist
phase began after Justice Earl Warren became its Chief Justice in 1953.
However, there was a world of difference between the sort of activism that had
happened in the first phase, and the sort that happened in this one. Wisely,
the Court decided not to bring back the idea of substantive due process for
economic rights, and focused on the civil rights of its citizens.The Warren Court is supposed to be the
high point of judicial activism in the United States, and most perceptions of
its merits and demerits are based on the decisions made by this Court[23].

Warren, J., who had been elevated to the
bench after three terms as the Governor of California, came committed to social
justice ideologies. He himself stated that justice for all was not a function
only of the Supreme Court, but could only be achieved once all branches of the
legal system worked together in harmony. In his quest for harmony, he did not
shy away from extremely divisive institutional problems in the American system,
and providing moral leadership to a country in a state of flux. Its critics,
however, have argued that the judiciary had decided to virtually legislate from
the bench[24],
and had, in doing so, ignored judicial precedent. In fact, Black, J. in his dissent
in Roe v. Wade, went so far as to say
that he felt that the Court was not interpreting the Constitution according to
what it said, but rather on the basis of what the judges wanted it to say.[25]

The first major case, and perhaps the
most famous one, in this era is the seminal case of Brown v. Board of Education,Topeka.[26]
This sought to overturn racial segregation, a policy which had been in place
since the reconstruction period in the United States in the 1870s[27],
and which had been judicially upheld in, inter
alia, the 1896 case of Plessey v. Ferguson,
where the Court said that separate facilities were legal, as long as
essentially the same service were provided.
Separate but equal was really a devious doctrine to put blacks down in
society. Brown, which saw through this
deviousness, dealt with segregated schools in Topeka, Kansas, which were legal
up to the middle school level in the state. The question, hence, arose with
regard to the 14th Amendment of the Constitution of the United
States, which had guaranteed to black people all the rights that Americans had
possessed as citizens, specifically the right to equal protection of the law.
This Constitutional provision had been read literally in all ways to severely
limit the scope of its operation. In many ways, though, Supreme Court decisions
had shown increasing discomfort with the way these prohibitions were
formulated, holding that “all legal restrictions which curtail the majority
right of a single racial group are immediately suspect”.[28]
In two other cases decided in 1950, the Supreme Court had also looked at what
equality would mean, including both tangibles and intangibles within its ambit,
while at the same time stating that a separation of students from his
colleagues (as the University of Oklahoma had effected) would mean that the
facilities were separate, though not equal.

This does not detract from the impact of
the decision. At a stroke, the Court refused to accept the “separate but equal”
doctrine when applied to racially-segregated schools, and instantly held that
segregation, by its very nature imposed inequality, especially when:

“it has the sanction of the law, for the
policy of separating the races is usually interpreted as denoting the
inferiority of the negro group. A sense of inferiority affects the motivation
of a child to learn. Segregation with the sanction of law, therefore, has a
tendency to retard the educational and mental development of negro children and
to deprive them of some of the benefits they would receive in a racial[ly]
integrated school system”[29]

To further
justify this, the Court said in interpreting the importance of the 14th
Amendment, one could not “turn the clock back” to when it was adopted, or when
the Plessey case was decided, but
rather that the rights guaranteed in it, especially with regard to education,
must be considered with regard to its contemporary value.

In order to
implement this decision, however, the Court decided another case with the same
defendants, colloquially called Brown II.[30]In this decision, the Court held that
it was essential that Brown I be implemented by the local school boards under
the supervision of the Federal District Courts, and that this be done “with all
deliberate speed”. In subsequently explaining this decision, Warren, J.
explained why he had not been in favour of immediate racial segregation by
implying that the logistics would take a long time to be worked out, “even,
possibly, by 1968”.[31]

The impact of this decision was massive, and polarized
society. On the one hand, organizations like the NAACP were vociferous in their
support, while the racial organizations in Southern states organized massive
resistances. In some cases, the political leaders of these states were at the
forefront of such movements. For instance, in Alabama, the Governor himself stood at the door of an
auditorium as late as 1963 to prevent black students from entering the
auditorium in an educational institute. However, the value of such a precedent
in terms of guaranteeing civil rights has never been seriously doubted. Many
commentators still feel that the United States falls short of
fulfilling the promises made in Brown; that
racial segregation and profiling still exists, but most agree that the
rationale of the decision was right, though whether the judiciary was the
preferred forum for such adjudication is still questioned. However, given that
state laws had shown little modification since the 1870s, the intervention of
the judiciary assumed importance. In subsequent decisions, the Warren Court
refused to allow the closure of public schools in PrinceEdwardCounty,
Virginia,
stating that grounds of race and opposition to desegregation would not be
sufficient to allow such closures.[32]

Another
important set of cases pertained to questions of Criminal Due Process. These
rights are rights guaranteed by the 4th, 5th and 6th
Amendments to the Bill of Rights. While
certain faltering steps had been taken in this regard even before the Warren Court[33],
the immense judicial activism that was done by the Court in these years
modified the understanding of Criminal Due Process. In doing so, the United
States Supreme Court ruled unanimously that the Constitutional guarantee of the
Sixth Amendment included that state courts are required to provide counsel in
criminal cases for those who cannot afford an attorney[34].
In a subsequent case, the Court looked at the necessity for counsel at an
earlier stage, and held that all suspects had a right to attorneys during
police interrogation.[35]
In doing so, the Court dismissed the arguments that these would be antithetical
to convictions by saying that “no system
of criminal justice can, or should survive if it comes to depend for its
continued effectiveness on the citizens’ abdication through unawareness of
their Constitutional rights”.[36]

Along with this, the right against
self-incrimination embodied in the U.S. Constitution was also extended to state
court proceedings as well[37],
thereby overturning earlier precedents.[38]

However, the most important case of
that era was that of Miranda v. State of Arizona[39]
which completely altered the understanding of the right against
self-incrimination that the Fifth Amendment to the United States Constitution
had provided. The Supreme Court, moving away from the earlier belief that all
that was necessary at the time of arrest was a bona fide belief in the guilt of a person, created what are known
as the Miranda rights, partly a summary of the earlier decisions of the Court.
These rights stated:

The
person in custody must, prior to interrogation, be clearly informed that he has
the right to remain silent, and that anything he says will be used against him
in court; he must be clearly informed that he has the right to consult with a
lawyer and to have the lawyer with him during interrogation, and that, if he is
indigent, a lawyer will be appointed to represent him.[40]

Not
surprisingly, Justice Warren’s approach, another example of “judicial
legislation”, aroused great controversy, not only in the political sphere but
also with his own colleagues. The earlier unanimity of Gideon v. Wainwright (1963) had faded, and Clark, Harlan and White,
JJ, wrote separate opinions, where both Harlan and White, JJ. argued that the
extension of these rights was constitutionally improper and judicially
impermissible. White, J., in fact went further in his rebuke to the majority
decision, and disclaimed any responsibility for the impact of the decision upon
the contemporaneous criminal system.[41]
It is believed to be the impact of this decision that led President Nixon,
elected two years later, to announce his decision to appoint ‘strict
constructionists’ to the United States Supreme Court.[42]

In
the context of Judicial Activism, it is also important to mention two
celebrated cases, even though only one was decided by the Warren Court, to look at the reactions it
has received from popular opinion. These refer to cases dealing with matters
like contraception and abortion. The question of the ‘right to privacy’ which
came up in the Warren Court’s
celebrated decision of Griswold v. State of Connecticut[43], is significant. This case held that
the right to use contraceptives was a right that could not be prohibited by
law, as it came within the ambit of the right to privacy. While the right to
privacy is not specifically mentioned in the Constitution, the Court created a
“penumbra right”, holding that while they did not sit as a super-legislature to
determine the wisdom, need, and propriety of laws that touch economic problems,
business affairs, or social conditions, however, a law prohibiting the use and
sale of contraceptives would operate directly on an intimate relation of
husband and wife. Similarly, the Burger
Court, in the case of Roe v. Wade took a controversial stand where it
extended the ‘right to privacy’ argument to a case of abortion, even though in such a case
it balanced the competing right of the life of the child and the mother’s
health in formulating what later became known as the trimester test. In Planned
Parenthood Association v. Casey, 1992 the Court abandoned the trimester
test and adopted the viability and undue burden tests, which is still the law relating to abortion
in U.S.A. (the decisions of the U.S. Supreme Court relating to abortion will
not apply in India, because in India we have the Medical Termination of
Pregnancy Act, 1971).

If
the Griswold decision had been
controversial, the Roe decision
kicked up a storm of controversy, not only on the matter at hand but also on
how the Court had chosen to decide cases. Commentators decried the decision by
alleging that the Court was acting as a legislator, and that the judiciary
should defer to the legislative, “democratic” (see Robert Bork’s `The Tempting
of America’). Those in favour, however,
justified the decision by claiming that there were valid grounds, within
Constitutional texts, to justify such a decision.[44]
Dissenting judges (White, J. and Rehnquist, J.) decided to write a separate
opinion, where White, J. attacked a
decision which, though he felt “may be” right, lacked “constitutional warrant”:

” The Court simply fashions and announces
a new constitutional right for pregnant mothers and, with scarcely any reason
or authority for its action, invests that right with sufficient substance to
override most existing state abortion statutes. The upshot is that the people
and the legislatures of the 50 States are constitutionally disentitled to weigh
the relative importance of the continued existence and development of the
fetus, on the one hand, against a spectrum of possible impacts on the mother,
on the other hand. As an exercise of raw judicial power, the Court perhaps has
authority to do what it does today; but, in my view, its judgment is an
improvident and extravagant exercise of the power of judicial review that the
Constitution extends to this Court”

PRESENT-DAY JUDICIAL ACTIVISM IN THE
UNITED STATES:

In
recent years, however, the U.S. Supreme Court has become much less “activist”
as compared to the heyday of activism in the Warren era. The Rhenguist Court
was quite conservative, while the present court is often deeply divided (see
the Healthcare Act decision of 2012 by a 5-4 majority referred to earlier) Some
of the few instances where the Courts’ decisions have been criticized on the
grounds of ‘activism’ include Lawrence v.
State of Texas[45]where the Supreme Court struck down a Texas statute that
considered same-sex sexual activity to be a crime. This decision has been
recognized as advancing ´an explicitly
equality based and relationally situated theory of substantive liberty”.[46]A recent judicial decision that has
dealt with limits that have been imposed on private spending in electoral
campaigns[47]
has also been considered to be an ‘activist’ decision, which overturned the
2002 Bipartisan Campaign Finance Act, thereby allowing corporations and unions
to make “electioneering communications” within 30 days of a primary or sixty
days of a state election. In doing so, the Court held that these laws would
invariably translate into censorship, and that such censorship was antithetical
to the continued functioning of a democracy. Kennedy, J., held that the
imposition of such limits would lead to a curtailment of the right to free
speech under the First Amendment of the Constitution. The bench, however, was
sharply divided, with the majority only being 5:4. Stevens, J., who dissenting,
argued that the overturn of these laws would lead to compromising the integrity
of the American political scenario, and concluded by saying:

”At bottom, the Court's opinion is thus a
rejection of the common sense of the American people, who have recognized a
need to prevent corporations from undermining self government since the
founding, and who have fought against the distinctive corrupting potential of
corporate electioneering since the days of Theodore Roosevelt.”[48]

Judicial
Activism: The India
Scenario

The
Indian Constitution, promulgated in 1950, largely borrowed its principles from
Western models – parliamentary democracy and an independent judiciary from England, the
Fundamental Rights from the Bill of Rights, and federalism from the federal
structure in the U.S. Constitution, and the Directive Principles from the Irish
Constitution. These modern principles
and institutions were borrowed from the West and then imposed from above on a
semi-feudal, semi-backward society in India.

In
Western countries such as England,
the modern democratic principles and institutions were a product of historical
struggles from the 16th to 19th Centuries in those
countries.

In
India,
on the other hand, these modern principles and institutions were not a product
of our own struggles. They were imported
from the West and then transplanted from above on a relatively backward, feudal
society, the aim being that they will pull India forward into the modern age.

The
Indian judiciary, being a wing of the State, has thus played a more activist
role than its U.S. counterpart in seeking to transform Indian society into a
modern one, by enforcing the modern principles and ideas in the Constitution
through Court verdicts.

In
the early period of its creation the Indian Supreme Court was largely
conservative and not activist. In that
period, which can broadly be said to be upto the time Justice Gajendragadkar
became Chief Justice of India in 1964, the Indian Supreme Court followed the
traditional British approach of Judges being passive and not activist. There were very few law creating judgments in
that period.

Justice
Gajendragadkar, who became Chief Justice in 1964, was known to be very
pro-labour. Much of the Labour Law which
he developed was judge made law e.g. that if a worker in an industry was sought
to be dismissed for a misconduct there must be an enquiry held in which he must
be given an opportunity to defend himself.

In
1967 the Supreme Court in Golakh Nath v.
State of Punjab, AIR 1967 SC 1643
held that the fundamental rights in Part III of the Indian Constitution
could not be amended, even though there was no such restriction in Article 368
which only required a resolution of two third majorities in both Houses of
Parliament. Subsequently, in Keshavanand Bharti v. State of Kerala,
AIR 1973 SC 1461 a 13 Judge Bench of the Supreme Court overruled the Golakh Nath decision but held that the
basic structure of the Constitution could not be amended. As to what precisely is meant by `basic
structure’ is still not clear, though some later verdicts have tried to explain
it. The point to note, however, is that Article 368 nowhere mentions that the
basic structure could not be amended. The decision has therefore practically
amended Article 368.

A large number of decisions of the Indian
Supreme Court where it has played an activist role relate to Article 21 of the
Indian Constitution, and hence we are dealing with it separately.

ARTICLE 21 AND JUDICIAL ACTIVISM

Article 21 states: “No person shall be
deprived of his life or personal liberty except according to procedure
established by law.”

In this connection it may be mentioned
that when the Indian Constitution was being framed the Constitutional Adviser
Mr. B.N. Rau went to America
and met Justice Frankfurter, the celebrated Judge of the U.S. Supreme Court, to
seek his advice. Justice Frankfurter
advised that the Indian Constitution should not have a due process clause as
that had created a lot of difficulties in America. Hence following his advice, and following the
language used in the Japanese Constitution, only procedural due process was
adopted in the Indian Constitution, and not substantive due process. Also, before the word `liberty’ the word
`personal’ was added to clarify that liberty did not include liberty of
contract.

In A.K.
Gopalan v. State of Madras, AIR 1950 SC
27 the Indian Supreme Court rejected the argument that to deprive a
person of his life or liberty not only the procedure prescribed by law for
doing so must be followed but also that such procedure must be fair, reasonable
and just. To hold otherwise would be to
introduce the due process clause in Article 21 which had been deliberately
omitted when the Indian Constitution was being framed.

However, subsequently in Maneka Gandhi v. Union of India, AIR
1978 SC 597 this requirement of
substantive due process was introduced into Article 21 by judicial
interpretation. Thus, the due process
clause, which was consciously and deliberately avoided by the Constitution
makers, was introduced by judicial activism of the Indian Supreme Court.

Another great arena of judicial activism
was begun by the Indian Supreme Court when it interpreted the word `life’ in Article
21 to mean not mere survival but a life of dignity as a human being.

Thus the Supreme Court in Francis
Coralie vs. Union Territory of Delhi[49]
held that the right to live is not restricted to mere animal existence. It
means something more than just physical survival. The Court held that:

“… the right to life includes the right
to live with human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing one-self in diverse forms,
freely moving about and mixing and comingling with fellow human beings.”

The ‘right to privacy’ which is a new
right was read into Article 21 in R. Rajagopal Vs. State of Tamil Nadu.[50]
The Court held that a citizen has a right to safeguard the privacy of his own,
his family, marriage, procreation, motherhood, child bearing and education,
among other matters.

The Supreme Court also ruled that the
right to life guaranteed under Article 21 includes the right to livelihood as
well.[51]
The right to food as a part of right to life was also recognised in Kapila
Hingorani Vs. Union of India[52]whereby it was clearly stated that it is the duty of the State to provide
adequate means of livelihood in the situations where people are unable to
afford food. The Court has also held that the right to safe drinking water is
one of the Fundamental Rights that flow from the right to life.[53]
Right to a fair trial,[54]
right to health and medical care,[55]
protection of tanks, ponds, forests etc which give a quality life,[56]
right to Family Pension,[57]
right to legal aid and counsel,[58]
right against sexual harassment,[59]
right to medical assistance in case of accidents,[60]
right against solitary confinement,[61]
right against handcuffing and bar fetters,[62]
right to speedy trial,[63]
right against police atrocities, torture and custodial violence,[64]
right to legal aid[65]
and be defended by an efficient lawyer of his choice,[66]
right to interview and visitors according to the Prison Rules,[67]
right to minimum wages[68]
etc. have been ruled to be included in the expression of ‘right to life’ in
Article 21. Recently the Supreme Court has directed providing a second home for
Asiatic Lions vide Centre for Environmental Law V. Union of India (writ petition
337/1995 decided on 15.4.2013) on the ground that protecting the environment is
part of Article 21. The right to sleep was held to be part of Article 21 vide
In re Ramlila Maidan (2012) S.C.I.1. In Ajay Bansal vs Union of India , Writ
Petition 18351/2013 vide order dated 20.6.2013 the Supreme Court directed that
helicopters be provided for stranded persons in Uttarakhand.

Thus
we see that a plethora of rights have been held to be emanating from Article 21
because of the judicial activism shown by the Supreme Court of India. However
there can be grave reservations about some of these orders. One wonders whether
there will be any limit to the number of such rights created by court orders.

Other Expansions

Judicial interpretation also expanded the
definition of ‘State’ under Article 12 of the Constitution whereby even
corporations[69]
‘instrumentalities of the State’, etc were brought within the scope of ‘State’
helping in the expanded enforcement of fundamental rights.

Article
14 of the Constitution, which originally was understood to only mean
non-discrimination by the States, was later interpreted in Royappa’s case case
(1974) and Maneka Gandhi’s case ( 1978) to also mean non arbitrariness .

Right to freedom of expression provided
by Article 19 of the Constitution is one of the widely construed rights. Thus,
the right also brings within its ambit the freedom of press and publication in
the print media[70]
and the right to participate in the public communicative systems.[71]

The importance of this right in democracy
gained importance when the judiciary struck down the Ordinance that amended the
Representation of People Act, 1950 that allowed the candidates non-disclosure
of assets stating that in the context of exercise of voting rights in
democracy, the right to know the assets, liabilities and past criminal
records cannot be restricted by the right to privacy of the candidates.[72]

Furthermore, though Directive principles
only talk about socio-economic rights which are not enforceable, creative
interpretation by reading them into the Fundamental Rights (which are
enforceable) formed a major step in developing these new rights and above all
advocating the rights of the unrepresented masses became much easier. In the
case of Unni Krishnan Vs. State of A. P.[73]
it was held that the right to education is a Fundamental Right under Article 21
as it ‘directly flows’ from right to life. Thus the Court interpreted Article
21 in the light of Article 45 wherein the State is obligated to provide
education to its citizens upto 14 years of age.[74]
Similarly in M. C. Mehta Vs Union of India[75]
the Supreme Court relying on Article 48-A[76]
gave directions to the Central and the State Governments and various local
bodies and Boards under the various statutes to take appropriate steps for
prevention and control of pollution of water.

In Vishakha Vs. State of Rajasthan,[77]the judiciary expressly laid down the law regarding sexual harassment at
the work place. In Sakshi Vs. Union of India,[78]
the provisions of in camera proceedings were made applicable in cases of rape
victims keeping in view their needs in the absence of specific legislative
provisions.

Another instance where the judiciary was
needed to come to the rescue of the its people was the case of Lata Singh
Vs. State Of U.P. & Another,[79](authored by the writer) where the
Supreme Court taking note of the deep rooted caste system of the country came
down hard on the relatives of a newly married couple who resorted to violence
and harassment as a way of showing their anger on the boy and girl marring
outside their caste or religion. Appropriately exercising judicial activism the
Court held:-

“This is a free and democratic country,
and once a person becomes a major he or she can marry whosoever he/she likes.
[…] We, therefore, direct that the administration/police authorities throughout
the country will see to it that if any boy or girl who is a major undergoes
inter-caste or inter-religious marriage with a woman or man who is a major, the
couple are not harassed by any one nor subjected to threats or acts of
violence, and anyone who gives such threats or harasses or commits acts of
violence either himself or at his instigation, is taken to task by instituting
criminal proceedings by the police against such persons and further stern
action is taken against such persons as provided by law.”

In
a subsequent decision, Bhagwan Dass Vs.
State (NCT) of Delhi, 2011(5) Scale 498, again authored by the writer, the
Supreme Court mandated death sentence for `honour killing’ i.e. killing of
young men and women who married outside their caste or religion, or in their
same village, thereby `dishonouring’ the parents or their caste.

The most recent case on judicial activism
was the case of Aruna Ramchandra ShanbaugVs. Union of India
and Others.[80]
Aruna Shanbaug, a nurse in 1973, while working at a Hospital at Mumbai,
was sexually assaulted and has been in a permanent vegetative
state since the assault. In 2011, after she had been in this status for 37
years, the Supreme Court of India heard the petition to the plea for
euthanasia filed by a social activist claiming to be Aruna’s friend. The Court
turned down the petition, but in its landmark judgment (authored by the writer)
it allowed passive euthanasia i.e. withdrawal of life support to a person
in permanently vegetative state, subject to approval by the High Court.

Judicial
Over Activism

Of
late the Indian judiciary appears to have become overactive, and is often
accused of judicial overreach. This
accusation was usually leveled by politicians or others outside the judicial
system, until in 2008 it was leveled by Justice A.K. Mathur and the writer (as
Judges of the Supreme Court) in Divisional
Manager, Aravalli Golf Course v. Chander Haas.

The Indian Supreme Court surely came a
long way since Anwar Ali Sarkar Vs. State of West Bengal,[81]
and A.K. Gopalan Vs. State of Madras where the judiciary refused to indulge
in making judicial policy and instead exercised judicial restraint keeping in
mind the Doctrine of Separation of Powers. However, the pendulum later swung to
the opposite direction. Thus, in Maneka Gandhi vs. Union of India AIR
1978 SC 593 the 7 Judge Bench of the Indian Supreme Court, while overruling the
5 Judge Bench decision in A.K. Gopalan’s
case introduced the due process clause in the Indian Constitution by a judicial
pronouncement. In S. P. Gupta Vs.
Union of India,[82]
it was held that:

“He [the judge] has to inject flesh and
blood in the dry skeleton provided by the legislature and by a process of
dynamic interpretation, invest it with a meaning which will harmonize the law
with the prevailing concepts and values and make it an effective, instrument
for delivery of justice.”

Similarly, in the case of Supreme
Court Advocates on Record Vs. Union of India,[83]it was held that:

“It belongs to the Judiciary to ascertain
the meaning of the constitutional provisions and the laws enacted by the
Legislature.”

This was the advent of an over active
judiciary which assumed upon itself the need to adjudicate even where it was
not perceived to be warranted. Although Article 50[84]
of the Indian Constitution expressly provides for Separation of Powers between
the different organs of the State, but time and again, the Indian Supreme Court
has taken on itself the task of filling in the gaps created by the Legislature
and the Executive to do ‘justice’.

While doing so, the judiciary has been
often criticized for overstepping its limits. In the case of Vineet
Narain Vs. Union of India,[85]the Supreme Court had invented a new writ called “continuing mandamus”
where it wanted to monitor the investigating agencies which were guilty of
inaction to proceed against persons holding high offices in the executive who
had committed offences. Furthermore, the Court created by its judicial order a
body called the Central Vigilance Commission, which was not contemplated by the
statute (the Delhi Special Police Establishment Act, 1946), for supervising the
functioning of a statutory body, the Central Bureau of Investigation. The Court
also laid down a number of guidelines for the appointments of chiefs of
investigating agencies like Central Bureau of Investigation, Central Vigilance
Commission and the Enforcement Directorate; apart from the Chiefs of the State
Police. These guidelines, apart from being in relation to appointment, were
also with regard to their status, transfer and tenure, etc. The question arises
whether this was legitimate exercise of judicial power.

In the case of Indian Council for
Enviro-Legal ActionVs. Union
of India,[86]
the Court passed various orders especially directed towards the States
requiring them to submit management plans to control pollution to both, the
Central Government as well as the Court. Here, the Court held that it was only
discharging its judicial functions in ensuring that it remedies the errors of
the executive.

In the case of M. C. Mehta vs.Union
of India,[87]
where a writ was filed with regard to the vehicular pollution in Delhi, the Supreme Court
had passed directions for the phasing out of diesel buses and for the
conversion to CNG. When these directions were not complied with due to shortage
in supply of CNG, the Court held that orders and directions of the Court could
not be nullified or modified by State or Central governments. This was a case
where, despite several directions being given by the Supreme Court, the
government did not act speedily in responding to the Order.

The Court has prescribed norms regarding
the running of the prisons and mental intuitions,[88]
instructed the Government to implement labor laws at construction sites,[89]
recognised admissions in medical colleges throughout India laying down
examination schedules,[90]
prescribing hawking zones in metropolitan cities,[91]
laid down the guidelines for the retail outlets for essential commodities such
as LPG,[92]
resolving disputes between public undertakings of Central Government,[93]
directed the authorities like C.B.I to conduct and complete investigation
expeditiously in cases of national importance,[94]
directed the noxious factories to restart on the technical reports on safety
measures,[95]
prescribed the poverty limits for the low income urban housing[96]
or set up an expert panel headed by a retired Supreme Court to study the
vehicular pollution level[97]
etc. In these decisions the court did
legislate, but in the process was criticized for having infringed upon the
executive domain.

With due respect to these and other
decisions it has to be said that many judges often forget that the judiciary
cannot solve all problems in the country. Suppose the Court passes an order
that from tomorrow poverty in India, or unemployment, or malnutrition etc. are
abolished. Will these orders mean anything? Can they really be implemented? India is a poor country with
limited financial resources. Moreover, many such orders e.g. for interlinking
rivers vide In re Networking of Rivers (2012) 4 S.C.C. 51 raise great technical
and administrative problems, and are really in the domain of the legislature or
executive.

Judicial Legislation

The
traditional theory of positive jurisprudence laid down that law making is the
task, of the legislature, not the Judge. The Judges’ task was only to
adjudicate disputes between the parties on the basis of the law made by the
legislature, though where the law was not clear (or its plain meaning led to some
absurdity) the judge could interpret it, but he must not make law.

When I asked the Chief Justice of the
Canadian Supreme Court Mrs. Beverley McLaughlin (this was when I was on the
bench of the Indian Supreme Court) her view about judicial legislation she
described it as an ‘Oxymoron’. However in fact it is an extremely complex issue
which cannot be dismissed so summarily.

Positivist
jurisprudence proceeded on the assumption that the legal order was ‘gapless’
and that by proper logical inferences a correct decision could always be
derived from the existing body of law. According to the analytical school of
Austin, which is still strongly entrenched in England, Parliament, and not
judges make law[98]
. From the principle of parliamentary supremacy flows the corollary that the
judges cannot make law, for if they do it would be infringing the supremacy of
Parliament. Similarly, in France, Montesquieu[99] proclaimed that the judge is subordinate to
the law and is bound by law.

However,
it can be demonstrated that even in England this view was really a fiction[100]. For instance, the entire British Common Law
was in fact judge made law (though most of it was made before Parliament became
supreme). The British judges from time to time gave law making decisions of
historical importance. For example, Rylands v. Fletcher (1866), created the law
of strict liability which is coming more and more into prominence in recent
times (see my judgment in Union of India vs. Prabhakaran Vijay Kumar,2008 ).
Similarly Donoghue v. Stevenson, 1942 AC 562, created the law of liability for
negligence, which has had a powerful impact all over the modern world.[101]
A large number of other law making decisions by British Courts can be quoted.

Judicial
legislation is to some extent unavoidable in the modern era for two reasons:
(1) Since modern society is dynamic, the legislature cannot possibly
conceive of, and cater to, all the
developments which may take place in the future. Hence there will be gaps in
the statutory law which have to be filled in by judges (2) The Legislature may
often be unwilling or incapable of making a modern law which is of pressing
need, and then this job has sometimes to be done by the court.

"It used to be disputed that judges make law.
Today, it is no longer a matter of doubtthat a substantial volume of the law governing the lives of citizens
and regulating the functions of the State flows from the decisions of the
superior courts. ‘There was a time’ observed Lord Reid, ‘when it was thought
almost indecent to suggest that judges make law – they only declare it……….But
we do not believe in fairy tales any more’.”

Keshavanand
Bharti’s case, AIR 1973 SC 1461, Maneka Gandhi’s case AIR 1978 SC 597, cases in
which new dimensions have been given to Articles 14 and 21 of the Indian
Constitution are all law-making judgments. Similarly, Marbury v. Madison, 1803 (5
US 137), Brown v. Board of Education, 1954 (347 US 383), Miranda, Griswold, etc are law-making
decisions of the U.S. Supreme Court.

The
view that the legal system is gapless was challenged by the German jurist Heck[102]
and the French jurist Geny[103]
who demonstrated that the positive legal order was necessarily fragmentary and
full of lacunae. They noted that there is always a certain sphere of discretion
where the judiciary could create law within these gaps. According to Geny, this
discretion should not be exercised arbitrarily but had to be based on objective
principles. According to Geny the method of doing this was “to recognize the
interests involved evaluate their relative force, weigh them on the scales of
justice so as to assure the preponderance of the most important ones according
to a social criterion, and finally to establish the most desirable balance”. To
produce a just equilibrium of interests, Geny says, the judge must carefully
scrutinize the prevailing moral sentiments and inquire into the social and
economic conditions.

In
Germany the free law movement pioneered by Fuchs[104]
and Kantorowicz[105]
required the judges to create law in accordance with justice and equity
whenever the positive law was unclear or ambiguous. According to them, the
judge should decide the case according to the dominant conceptions of justice,
or if such were absent, according to subjective legal conscience.

In
the U.S.A. Roscoe Pound, who is the most outstanding figure in sociological
jurisprudence in America, propounded his “instrumentalist” approach, which
would allow the judge a greater flexibility. In his book ‘Jurisprudence’ Pound
states that the engineer is judged by what he does. His work is judged by its
adequacy to the purpose for which it is done, and not by its conformity to some
ideal form of a traditional plan. We are beginning, in contrast with the last
century, to think of jurist and judge and law-maker in the same way. Law is,
above all, “social engineering”.

Pound
does not deny that the dispensing of justice in keeping with the established
norms has certain advantages, such as predictability and stability in the legal
system. However, according to him, it is also possible to sometimes dispense
“justice without law”, which according to Pound, has its advantages such as
greater adaptability to the social dynamic, etc.

In
line with Ehrlich, Geny, Kantorowicz, Sinzheimer and other European jurists,
Pound regards the normative material as the least important part of the legal
order. The purpose of law, according to Pound, is to reconcile and harmonise
the conflicting and overlapping demands and interests of the society, and he
has laid down his “table of interests” for this purpose. Pound believes that
his concept of law, and especially his notion of the possibility of “justice
without law”, is more capable than any other of resolving a problem which he
regards as basic and which he formulates as follows:

“Law
must be stable and yet it cannot stand still”.

In
this way Pound seeks to bring law into harmony with the dynamism of social
life.

The
French jurist Cruet in his book ‘The Life of Law and the Importance of its
Acts’ observes: “Every legislative act brings the law to a halt.” This is
explained by the ‘lagging’ of the legal order behind the dynamic forward movement
of society. As Burdeau says, legislation was an excellent thing so long as its
chief function was of consolidation of established relationship. But when major
changes kept occurring in modern society legislation was found inadequate.

Justice
Cardozo of the U.S. Supreme Court in his book ‘Growth of Law’ tried to
reconcile the contradiction between a stable legal order and the social dynamic
by propounding his “principle of growth” as a means of arriving at a compromise
between “stability” and “change”. According to Cardozo, “sooner or later if the
demands of social utility are sufficiently urgent and if the functioning of an
existing rule is sufficiently productive of hardship or inconvenience, utility
will tend to triumph”. This is also the view of Pound who in his book
‘Interpretation of Legal History’ says:

“The
social interest in the general security has led men to seek some fixed basis
for an absolute ordering of human action whereby a firm and stable social order
might be assured. But continual changes in the circumstances of social life
demand continual new adjustments to the pressure of other social interests as
well as to new modes of engendering security. Thus, the legal order must be
flexible as well as stable. It must be overhauled continually and refitted
continually to the changes in the actual life which it is to govern. If we seek
principles, we must seek principles of change no less than principles of
stability”.

According
to Pound and Cardozo, it is often a court hearing that first brings to the
forefront those new factors, trends, and conditions which necessitate changes
in the law, and they can be most helpful in forestalling possible tensions
between a stable legal order and changes in society.

The
realist school took the matter to extremes in America. According to Gray,[106]
one of the founding fathers of the realist school, all law is judge made law.
Gray regards statute, custom, etc., as merely the material which the judge uses
in making law. This is regarded by some as a development of the thesis of
Justice Holmes, who observed that law is nothing more than the prediction of
how the court will act. According to the realist school, law is made by the
judge in his professional capacity and it is in constant flux. Frank, another
leader of the realist school of America, regards statute as ‘probable law’
while the judge made law is ‘actual law’.

The
realist school went to extremes and it was subsequently rejected in the U.S.A.,
but judicial law-making is still often accepted in America. Thus Prof.
Friendmann of Columbia University in his article ‘Limits of Judicial Law
Making’ (29 MLR No.6 1996) writes:

“The
Blackstonian doctrine as the ‘declaratory’ function of the courts, holding that
the duty of the court is not to pronounce a new law but to maintain and expound
the old one, has long been little more than a ghost. From Holmes and Geny to
Pound and Cardozo, contemporary jurists have increasingly recognised and
articulated the law-making functions of the courts…….It is therefore time to
turn from the stale controversy over whether judges make law to the much
more complex and controversial question of the limits of judicial law-making.”

It
appears that while earlier judges used to make a law while pretending not to, this
no longer is the practice now. The Austinian view that the judges do not make
law was based on the principle of parliamentary supremacy in England, and hence
the judges in England had to maintain the fiction that they were not
legislating otherwise there would be violation of parliamentary supremacy.
However, now even the judges in countries following the common law system
openly proclaim that judges do make law.

Thus,
Justice Holmes of the U.S. Supreme Court stated “I recognize without hesitation
that judges do legislate, but they do so only interstitially, they are confined
from molar to molecular dimensions”. (See ‘The Mind and Faith of Justice
Holmes’).

A
similar view was taken by Lord Denning in England. In Seaford Court Estates v.
Asher,[107]
he observed:

“It
would certainly save the judges trouble if Acts of Parliament were drafted with
divine prescience and perfect clarity. In the absence of it, when a defect
appears a judge cannot simply fold his hands and blame the draftsman. A judge
must not alter the material of which it (the law) is woven, but he can and
should iron out the creases”.

This
view was no doubt overruled by the House of Lords in Magor and St. Mellons
District Council v. Newport Corporation,[108]
which declared it a ‘naked usurpation of the legislative function’, but the
Indian Supreme Court has preferred the view of Lord Denning to that of the
House of Lords (See Directorate of Enforcement v. Deepak Mahajan,[109] State of Karnataka v. Hansa Corporation[110]
and Bangalore Water Supply and Sewerage Board v. Rajappa.[111]
)

In
his book ‘The Nature of the judicial process’ Mr. Justice Cardozo of the U.S.
Supreme Court said “He (the judge) legislates only between gaps. He fills the
open spaces in the law”.

Since
it is now accepted by almost all jurists in the countries following the Common
Law System that judges do legislate we can proceed further with the enquiry
regarding the manner of this judicial legislation, the circumstances in which
it can be done, and its limits.

Bodenheimer
in his ‘Jurisprudence’ states “There may be times or historical contingencies
where bold and unconventional action on the part of a judge becomes wholesome
and beneficial for society. There may be situations where stagnation or decay
can be overcome only by a judicial decision-maker who, being convinced that the
preponderant values of the community are wholly obsolete or unreasonable, is
willing to take risk and is determined to chart a new course into the future.
Progress often depends on the courageous, decisive and anti-traditional action
of great men. And although we should insist that the major tasks of law reform
should be reserved to the action of men or bodies entrusted with the business
if we did not, at times, concede to the judiciary the right to lead the moral
sentiment of society and inaugurate, in
a judicial decision, a new conception of justice in accordance with the highest
knowledge and truest insight perceptible to the human mind.”

Limits of Judicial Legislation

1.Where
there is a clear casus omissus i.e. gap in the statute the court can fill it in.
This was done by the Indian Supreme Court in D. Velusamy v. D.
Patchummal (2010). In that case the Protection of Women from Domestic Violence
Act, 2005 was considered. Section 2 (f) of that Act defines ‘domestic
relationship. That definition uses the expression ‘relationship in the nature
of marriage’ but does not explain what it means. Hence the court had to fill in
the gap in the law.

2.But
what if there is no law,
and hence there is no question of filling in the gap? In Vishaka vs. State of
Rajasthan, AIR 1997 S.C. 3011 there was no law for protection of women from
sexual harassment at work places, and hence no gap in an existing law. Yet the
Supreme Court laid down guidelines in this connection, and said that this will
be the law until Parliament makes a law on the subject. Here the court
practically acted as an interim Parliament. Is this a valid approach?

In University of Kerala vs. Councils of
Principals of Colleges (2010) 1S.C.C. 353 a 2 Judge bench of the Supreme Court of
which I was a member referred to a Constitution Bench the question whether this
approach is valid, but the Constitution Bench is yet to be constituted.

In the University of Kerala case (supra)
the facts were that in many educational institutions in the country the
students union had been captured by anti-social elements who created a lot of
trouble for the institution. Hence the court constituted a committee headed by
Mr. Lyngoh (former Chief Election Commissioner) to make recommendations for
ameliorating the situation. The committee made its recommendations, and court
by an interview order directed these to be enforced in all educational
institutions.

The matter came up before a bench of which
I was a member. I was of the view that the court’s order amounted to judicial
legislation and was invalid. The court could have directed the concerned
authority to consider these recommendations, but could not have directed that
they be implemented.

In in re Networking of Rivers (2012) 4
S.C.C. 51 the Supreme Court directed interlinking of the rivers of India. Such
an order raises a host of problems, e.g. finance, planning, land acquisition, civil
construction, environmental issues, etc. Should such an order have been passed?
Is it implementable? I have grave reservations about this.

In L.K. Pandey v. Union of India, AIR
1986 S.C. 272 detailed guidelines have been issued by the Supreme Court for
inter country adoption, though there is no legislation on the subject.

In Kumari Mathuri Patil v. Addl.
Commissioner, (1994) 6 S.C.C. 241, in order to check issuance of false and
fabricated scheduled caste certificates, the Supreme Court issued a set of 15
guidelines about how such certificates should be issued, which authority can
issue them, etc. It also created a vigilance cell headed by a senior police
officer to check the malpractice. In Dayasram v. Suhi Balham (2012) 1 S.C.C.
333 the Supreme Court doubted the correctness of this judgment, and referred the
matter to a larger bench, but the larger bench upheld the directives, saying
that they were meant to fill in a legal vacuum.

3. Canthe court itself perform functions which have been given to a statutory
authority? In several decisions the Supreme Court held
that it cannot. Thus in Supreme Court Bar Association vs. Union of India, AIR
1998 S.C. 1895, a Constitution Bench of the Court held that under the Advocates
Act, 1961 only the Bar Council can debar a lawyer, and hence it reversed the
earlier decision of a 3 Judge bench debarring a lawyer.

In
M.C. Mehta vs. Union of India (1997) 8 S.C.C. 770 the Supreme Court directed
that the maximum speed limit of heavy vehicles in Delhi can be 40 km.p.h But
fixing speed limits is the task of the State Government or its nominee vide
Section 112 Motor Vehicles Act, 1988. Was the direction therefore valid?

In
G. Veerappa Pillai vs Raman and Raman, AIR 1952 S.C. 192 the High Court had in a decision directed the
Regional Transport Authority (R.T.A) to issue a bus permit to the petitioner.
On appeal, the Supreme Court set order this order, holding that under the Motor
Vehicles Act only the R.T.A. could issue the permit, and the High Court by its
order in effect granted the permit itself (see also State of U.P. vs. Jeet S. Bisht,
2007 vide paragraphs 45 and 46 of judgment of M. Katju, J.).

4. Can
the Court ignore a statutory or Constitutional provision, and substitute it by
its own order. It is evident that this cannot validly be done, but in fact
it was done by the Supreme Court in the second Judges case (Supreme Court
Advocate o Record Association v. Union of India) in which the court in effect
ignored the provisions of Article 124 for appointing Judges to the Supreme
Court, and substituted its own procedure (The Collegium System).

5.
Can the Court direct the legislature to make a law or amend an Act of the
legislature? In a catena of
decisions, some of which have been referred to in Divisional Manager, Aravali
Golf Course v. Chander Haas (supra) the
Supreme Court held that the court has no such power. Yet in Vineet Narain v.
Union of India AIR 1998 S.C. 889 the Supreme Court directed amendment to the
Delhi Special Establishment Act 1946
(under which the C.B.I. is constituted) by setting up a Central
Vigilance Commission to which the C.B.I. will be accountable for its efficient
functioning.

Trends in Judicial Restraint

There is broad (though not absolute)
separation of powers in the Indian Constitution vide Divisional Manager,
Aravali Golf Course vs. Chander Haas, 2008.
The Constitution of India did not provide for the judiciary to be a
super legislature or a substitute for the failure of the other two organs.
Thus, the need arises for the judiciary to lay down its own limitations.

Some people say that the judiciary can
enter into the domain of the executive or legislature because these organs are
not functioning properly. But then it can also be said that the judiciary, too,
is not functioning properly, there is great delay in deciding cases, corruption
in a section of the judiciary, etc. Should then the legislature or executive
take over the judiciary’s function?

One
of the examples of judicial restraint is the case of State of RajasthanVs.Union of India,[112]
in which the court rejected the petition on the ground that it involved a
political question and therefore the court would not go into the matter.
In S.R. Bommai Vs. Union of India.[113]the judges said that there
are certain situations where the political element dominates and no judicial
review is possible. The exercise of power under Art.356 was a political
question and therefore the judiciary should not interfere. Ahmadi J. said that it was difficult
to evolve judicially manageable norms to scrutinize the political decisions and
if the courts do it then it would be entering the political thicket and
questioning the political wisdom, which the court must avoid.[114]

In Almitra
H. Patel Vs. Union of
India,[115] where the issue was whether directions
should be issued to the Municipal Corporation regarding how to make Delhi
clean, the Court held that it was not for the Supreme Court to direct them as
to how to carry out their most basic functions and resolve their difficulties,
and that the Court could only direct the authorities to carry out their duties
in accordance with what has been assigned to them by law. Also, in Union of India Vs.Kishan K. Sharma,[116]when the High Court issued a Mandamus to the Government to pay a particular
scale to its officers, the Supreme Court laying down the boundaries of judicial
activism in general held that such Mandamus would not be permissible as fixation
of salaries was an administrative decision. Similarly, creation of a post is an
administrative or legislative functions, and cannot be done by the court vide
Divisional Manager, Aravali Golf Course (supra)

PUBLIC
INTEREST LITIGATION IN INDIA

The traditional legal principle was that
only a person, whose own right has been infringed, can file a petition in
Court. In other words, the petitioner
must show his `standing’ or locus standi.

In S.P.
Gupta’s case (AIR 1982 SC 149), however, the Indian Supreme Court gave up
this principle, and thereafter there has been a flood of cases in the High
Courts and Supreme Court (called P.I.L.).
There could be some justification for some of these as they are filed by
public spirited persons or organizations on behalf of poor and weaker sections
of Indian society who could not bear the lawyers’ fees and Court expenses.
Thus, in State of Uttaranchal v. Balwant Singh, AIR 2010 S.C. 2550 the Supreme
Court observed: “This Court realized that a large section of society because of
extreme poverty, ignorance, discrimination and illiteracy had been denied
justice from time immemorial. Predominantly, to provide access to justice to
poor, deprived vulnerable, discriminated and marginalized sections of society,
this court has initiated encouraged and propelled public interest litigation.
This litigation is the upshot and
product of this Court’s deep and intense urge
to fulfil its bounden duty and constitutional obligation”.

However, in the landmark decision in Common
Cause Vs. Union of India,[117]
(authored by the writer) the Apex
Court observed that PIL in the present times are
being entertained by many courts routinely in large numbers in matters which are
mostly frivolous or motivated by extraneous considerations. PIL has these days
largely become “Publicity Interest Litigation”, “Private Interest Litigation”
or “Politics Interest Litigation” or the latest trend “Paise Income
Litigation”. Much of P.I.L. is really
blackmail. Often one businessman gets a
P.I.L. filed against a rival businessman to harm him.

In Divisional Manager, Aravalli Golf
Club Vs. Chandrahass,[118]
the Supreme Court again declared that though judicial activism is sometimes a
useful appendage to democracy, it should be resorted to only in exceptional
circumstances when the situation forcefully demands it in the interest of the
nation or the poorer and weaker sections of society. Ordinarily the judiciary should exercise
self-restraint.

Where the judiciary unwarrantedly tries
to perform executive and legislative functions in the name of judicial
activism, the delicate balance in the Constitution is disturbed and this invite
reactions from politicians and other quarters. Therefore it is extremely
important for the judiciary to exercise restraint and it should not ordinarily
try to perform the functions of the Executive or the Legislature. The Court in
the Aravalli Golf Club case pointed
out some instances where the Court had strayed into the Legislative or
Executive domain or in matters of policy.
In Common Cause the Court observed:-

“Public Interest Litigation, which was
initially created as a useful judicial tool to help the poor and weaker
sections of society who could not afford to come to Court has in course of
time, largely developed into an uncontrollable Frankenstein and a nuisance
which is threatening to choke the dockets of the superior court obstructing the
hearing of the genuine and regular cases which have been waiting to be taken up
for years together.”

Justice A.S. Anand former Chief
Justice of India, in a public lecture cautioned that with a view to see that
judicial activism does not become “judicial adventurism”, judges need to be
circumspect and self- disciplined in the discharge of their judicial functions.
The worst result of judicial activism is unpredictability. Unless judges exercise self-restraint, each
judge can become a law unto himself and issue directions according to his
personal fancies, which will create chaos.[119]
Reservations have been expressed in many quarters about some very recent
decisions of the Supreme Court.

JUDICIAL
ACTIVISM BY JUDICIAL INTERPRETATION

In
Britain since there was no written Constitution, and since Parliament was
supreme, the literal rule of interpretation was normally followed in
interpreting statutes. This principle
said that Courts should not twist the language of a statutory provision, and
should not add or delete words from it, because to do so would be to thwart the
will of Parliament which was supreme.

In
countries with written Constitutions like U.S.A. and India on the other hand,
it is the Constitution and not the legislature which is supreme, and since the
Constitution means what the Judges say it means, this by itself makes the
judiciaries in these countries more powerful and activist than in England.

In
the garb of interpretation Judges often make law (though they never openly say
so), e.g. the creation of a right to privacy in Griswold.

There
are some vague provisions like the `due process’ clause in the U.S.
Constitution which can be interpreted in different ways. Similarly, the rights in Article 19(1) of the
Indian Constitution e.g. freedom of speech, freedom to assemble peacefully,
freedom of movement etc. are all subject to reasonable restrictions vide
clauses (2) to (6) of Article 19. But
what is reasonable? This is for the
Courts to decide, and what is reasonable to one Judge may not be so to another.

Similarly,
there are words which may appear to be clear, e.g. `liberty’ but were
interpreted by the U.S. Supreme Court at one time to include liberty of
contract. The word `life’ in Article 21
of the Indian Supreme Court has been interpreted to mean a life of dignity, and
this has been held to include a plethora of
rights.

The commerce clause in the U.S.
Constitution, which states (in Article Section 8) that Congress can regulate
interstate commerce, has been given a very expanded meaning by the U.S. Supreme
Court so as to give Congress very wide powers to regulate the economy, even
where strictly speaking there was no evident interstate trade or commerce.

The
commerce clause in Article 1 Section states “Congress shall have power to
regulate commerce among the several states”.

Now two things may be noticed in the
commerce clause (1) It mentions commerce (i.e. trade) and not manufacture (2)
It gives power to Congress to regulate interstate commerce, and not intra state
commerce. Thus, as originally conceived,
the commerce clause had a narrow scope, because in 1789 when the U.S.
Constitution was made U.S.A. was broadly an agricultural country, and an
agricultural society does not need many powers for its Central Government.

However, when U.S.A. become a highly
industrial country, a strong Central Legislature and Executive were required.
Hence the scope of the commerce clause was greatly expanded by judicial
interpretation. The most important decision of the U.S. Supreme Court in this
connection was Wickard vs. Filburn, 317 U.S. 111 (1942), and we may consider it
in some detail.

To stabilize the price of wheat in the
national market, Congress enacted the Agricultural Adjustment Act, 1938. This
Act limited the area that farmers could devote to wheat production, so as to
control the amount of wheat produced in the country. The purpose of this was to
drive up the wheat price which had crashed during the Great Depression, ruining
many farmers.

Filbury was a small farmer in Ohio who was
permitted in 1941 to plant wheat on 11 acres of his land, but he planted it on
23 acres, thus admittedly producing more wheat than the amount permitted. His
defence was that the wheat produced was for his own consumption on his own
land. Since the wheat never entered commerce at all (because it was self
consumed and not sold), much less interstate commerce, he argued that it was
not a proper subject of federal regulation under the Commerce Clause.

The U.S. Supreme Court rejected this
argument, holding that if Filburn and not used the wheat grown by him he would
have had to buy it from the open market. This effect on interstate commerce may
not be substantial from the action of Filburn alone, but through the cumulative
actions of thousands of similar farmers its effect could became substantial.
Hence Congress could regulate such activity, even though it was intra state and
non commercial.

The court rejected the argument that
production, manufacture and mining could not be regulated under the commerce
clause because the activity was local and their effect on interstate commerce
was only indirect.

This decision, therefore, included
manufacture or agricultural production within the meaning of commerce, and it
permitted regulation not only of interstate commerce but also intra state
commerce. Thus by judicial interpretation the court deviated completely from
the plain language of the commerce clause. The ratio of the decision, that even
if one produces on one’s land for self consumption it affects interstate commerce,
appears to be very farfetched. But considering the fact that in the industrial
age Congress had to be given extensive power for regulating the economy, the
decision is unexceptional. It has been followed in Gonzales vs. Reich, 2005.

In U.S. vs. Wrightwood Dairy Co 315 U.S.
110 (1942), the question to be decided was whether the Agricultural Marketing
Agreement Act, which permitted the Secretary, Agriculture to fix the minimum
price of milk, also governed intra state milk sales. The Court held that the
price of intra state milk in competition with interstate milk adversely affects
the price structure and regulation of the latter.

In U.S. vs. Darby Lumber Co. 312 U.S. 100
(1941) the Court held that Congress had power under the Commerce Clause to
regulate employment conditions. This decision overturned the decision in Hammer
vs. Dagenhart 247 US 251 (1918).

Thus we see that the Commerce Clause, which
on a plain and literal reading seems to grant very narrow power to Congress to
regulate the U.S. economy, by judicial interpretation (often by very strained
reasoning) has given very extensive powers.

It may be pointed out here that the
legislative powers of Congress are those given in Article 1 Section 8 of the
U.S. Constitution, and all other powers not mentioned therein are with the
States vide Tenth Amendment. Hence residuary powers in the U.S. Constitution
are with the States, unlike in the Indian Constitution where Article 248 gives
residuary powers to Parliament. Hence, if the U.S. Supreme Court had not given
an expansive interpretation to the Commerce Clause, Congress would have little
power to regulate the economy.

Apart
from the above, it must be kept in mind that a Constitution is designed as an
enduring document intended to serve a long era.
It is not designed to meet the
needs of the day when it is enacted, but also the needs of an unforeseen
future with greatly altered circumstances.
Hence it has to receive a liberal interpretation so as to include within
its ambit future developments in various fields of human activity, rather than
restricting its language to the state of affairs existing at the time of its enactment. In the interpretation of a Constitution it
must be remembered that words used in it are but a framework of concepts, and
concepts may change more than words themselves.
Hence constitutional issues cannot be resolved by mere abstract
consideration of the words used without keeping in mind the line of their
growth and the new conditions which have come into existence.

Also,
it must be kept in mind that a Constitution only outlines general principles
rather than going into details. As
observed by the Indian Supreme Court in Peoples Union for Civil Liberties v.
Union of India (2003) 4 SCC 399 (453):

“Fundamental Rights (in the Constitution)
have no fixed content; most of them are empty vessels into which each
generation must pour its content in the light of its experiences”.

The
preponderant legal opinion all over the world is against the ‘original intent’
theory. Thus Justice Michael Kirby of
the Australian High Court has observed: “We are not bound to the imaginings of
the men who in the last decade of a past century wrote the Constitution. It is a governmental charter of today’s
Australians”, vide Abebe Vs.Commonwealth (1999) ALJR 584 (624). Mr. Justice John Roberts, the newly appointed
Chief Justice of the U.S. Supreme Court, during his confirmation
hearings, is reported to have said (The New York Times, September 26, 2005): “I
think the framers, when they used broad language like ‘liberty’, like ‘due
process’, like ‘unreasonable’ with respect to search and seizures, were
crafting a document that they intended to apply in a meaningful way down the
ages, ….and to apply to evolving societal conditions”. As observed by Justice Brennan : “ We current
justices read the Constitution in the only way we can: as the Twentieth Century
Americans”. A Constitution is a living
document, said Chief Justice Marshall “intended to endure for ages to come”
vide McCulloch vs. Maryland
(1819).

It follows that Courts have more
freedom in interpretation of a Constitution than in interpretation of ordinary
statutes, and the literal rule, which is applied in interpreting criminal and
tax statutes, has no strict application in interpreting the Constitution.

Activism
of U.S. Supreme Court

As already mentioned earlier in this
note, there were two main periods of activism in the history of the U.S.
Supreme Court, the first being from the end of the 19th Century to
the year 1937 when the decision in West Coast Hotels v. Parrish was
delivered. This was the era of ‘economic
due process’. The second period was the
period of the Warren Court
from 1953 to 1969.

The
interesting point to note is that while ‘economic due process’ vanished from
the scene after 1937, the liberalism of the Warren Court and the important
decisions like Brown v. Board of Education, Griswold v. Connecticut and Miranda
v. Arizona still broadly hold the field today, and indeed in some ways were
advanced e.g. in Roe v. Wade, 1973 (modified in Casey).

There
was an important reason for this. The
U.S. Constitution is a short document (as contrasted to the Indian
Constitution). It sought to incorporate
the ideals of the Founding Fathers who wanted to set up a republican,
democratic government, but also wanted to protect the people against this
government lest it turn oppressive.
Practical concerns motivated this fear.
The Founding Fathers had lived through bitter years when they had seen
governments, both the royal government in England as well as their own state
governments (headed by British Governors) trample on the human rights which
they and their ancestors had fought so hard to secure. Hence they were determined that there should
be no uncontrolled power in America. As Jefferson
said “an elective despotism was not the government we fought for” (see Charles
Warren’s ‘Congress, the Constitution and the Supreme Court’). It is for this reason that the Bill of Rights
was inserted in the original draft of the Constitution.

The
problem, however, was that many of the expressions in the U.S. Constitution,
particularly the Bill of Rights, required elucidation. The Founding Fathers wisely spoke in general
language and left to succeeding generations the task of applying that language
to the constantly changing environment in America. Similarly, those who framed the civil war
amendments used what have been described as ‘majestic generalities’ in the
Fourteenth Amendment. The Framers of the
Constitution gave latitude to later interpreters to make the language
applicable to cases which the Framers might not have foreseen.

For instance, the expression ‘due
process’ in the Fifth and Fourteenth Amendments is vague (just as the
expression `reasonable restrictions’ in Article 19 of the Indian Constitution
is vague). Also some words like liberty,
equality etc. may appear clear, but they are often interpreted
differently. For instance, are liberty
or free speech enshrined in the Constitution absolute (as Justice Hugo Black
perceived it), or can restrictions be placed on them? Most Judges disagree with the extreme view of
Black, and believe that there are no absolute rights in the Constitution. But what kind of restrictions can be placed
on them, and in what situations, and to what degree? Opinions may, and do, differ here.

In this connection it may be noted that
the rights mentioned in Article 19 (1) of the Indian Constitution e.g. freedom
of speech and expression, freedom to assemble peaceably, freedom to form
associations, freedom of movement throughout India, freedom to practice any
profession etc. are all subjection to reasonable restrictions in the interests
of the sovereignty and integrity of India, security of the State, public order,
decency, morality etc. vide Articles 19 (2) to (6). The Bill of Rights in the U.S. Constitution,
however, does not specifically say that the rights mentioned therein are
subject to reasonable restrictions.
However, by judicial interpretation the result is the same i.e. these
rights are not absolute, but subject to certain restrictions e.g. the law of
defamation, obscenity, security and the need to maintain public order. Freedom of speech does not permit shouting
‘fire’ in a crowded theatre causing a stampede, as Justice Holmes pointed
out.

It was here that the role of the U.S.
Supreme Court was crucial. The Warren Court sought
to inject flesh and blood into the Bill of Rights and make them truly
meaningful. For instance, while the American Declaration of Independence, 1776
declared that ‘all men are created equal’ and this was made explicit by the
Fourteenth Amendment, a section of American society still regarded black men as
not equals to whites, and this mentality continued even after the Civil War of
1861-65 reaching its culmination in Plessy
Vs. Ferguson, 1896 which effectively validated segregation in American
society, like the apartheid in South Africa.

By the end of World War II a situation
had been reached where the black man had become fed up of being treated as
inferior. American society would have
been torn apart but for Brown, and this decision showed the wisdom of the U.S.
Supreme Court at its best, for it fulfilled the ideals of the Founding Fathers.

There
were many attempts at overruling Miranda, Roe, etc. but these decisions had in
course of time, so much become a part of American culture that all these
attempts failed. (see ‘The Nine by Jeffrey
Toobin)

In
other fields also the U.S. Supreme Court has displayed great
statesmanship. With the growth of
industrialization there was need of a strong Central Legislature and Executive,
and hence the Court interpreted the Constitutional provisions liberally (and
not literally) to give them these powers.
For instance, when Congress established a bank a challenge was made that
this was unconstitutional as Article 1 Section 8 of the U.S. Constitution which
mentions the powers of Congress does not mention ‘bank’ or
‘incorporation’. The Court held in
McCulloch v. Maryland,
1819 that the power to set up a bank emanated from the great powers to levy and
collect taxes, to regulate commerce, etc.
Thus the technique (of regarding as unenumerated rights as emanating
from specified rights) used in Griswold had its forbear in McCulloch. The ‘penumbra’ or ‘emanation’ theory of
Justice Douglas in Griswold really dates back to Marshal.

The
commerce clause in the U.S. Constitution was developed and expanded by judicial
interpretation, making it one of the most important grants of authority. As Justice Stone said “The commerce clause
and the wise interpretation of it, perhaps more than any other contributing
element, have united to bind the several
states into a nation.” Largely through
the use of the commerce power the national government regulates almost every
conceivable aspect of American life.

The
interesting point is that if the commerce clause is given a literal
interpretation it will have a very narrow scope. Article 1 Section 8 states that Congress
“shall have power………..to regulate commerce with foreign nations and among the
several states.”

However,
in National Labour Relations Board Vs.
Jones and Laughlin Steel Corporation, 301 U.S. 1, the U.S. Supreme Court
upheld the National Labour Relations Act, 1935 by which workers were granted
the right to collective bargaining, on the ground that if there is industrial
strife it will affect interstate commerce.
Ever since a wide, and not literal, meaning has been given by the U.S.
Supreme Court to the commerce clause. (Some relevant case law has already been
discussed above).

The
interpretation of this provision by the U.S. Supreme Court was so expansive
that is impossible to believe that the Court followed the original intent of
the Constitution makers. Bork, Scalia,
and other ‘original intent’ advocates are thus in a conflicting situation. While they talk of ‘original intent’, they
have never criticized the expansion of the commerce clause by the U.S. Supreme
Court. The correct view seems to be that
of Richard Posner in his book ‘Law, Pragmatism and Democracy’ in which Posner
sought to demonstrate that great U.S. Judges often resorted to the pragmatic,
rather than the formalistic or abstract approach in interpreting the
Constitution. The ‘original intent’
approach will make the U.S. Constitution totally unworkable, since the America of 1791 (when the Constitution was
adopted) is very different from the America of 2011.

Activism
of the Indian Supreme Court

The Indian Supreme Court has been much more
activist than the U.S. Supreme Court. One important reason for this is due to
the different historical situations prevailing in the two countries.

The
United States is an industrialized country, in fact the most advanced in the
world. On the other hand, India
is still in a transition period, between feudal agricultural society to a
modern industrial one. This transition
period is always a very painful one, as a study of the European history from
the 16th to 19th centuries discloses, full of turbulence
and intellectual ferment.

Since
the Indian Constitution is modern while Indian society is still backward, one
of the important roles of the Indian judiciary is to help India get over its
transition period faster and with less pain.

The
fact that the Indian higher judiciary is not elected and has a secure (though
not life) tenure is in fact its strength.
The politicians in India
have usually to rely on caste or religious vote banks to get elected, and caste
and religion are really feudal forces.
Hence the Indian politicians often cannot take strong steps against
feudal practices, while the judiciary, which does not depend on these vote
banks, can do so.

A
good example of this is the judgment in Bhagwan Das vs. State (NCT) of Delhi, 2011 authored by
the writer.

In
parts of India (and Pakistan) there
is a phenomenon called ‘honour killing’. This means that if a girl falls in
love with a boy of a different caste or religion, or belonging to the same village,
both are killed by the family members or their caste organizations (as they are
said to have ‘dishonoured’ their family, caste or religion). Many political leaders do not interfere with
these ‘honour’ killings as they are dependent on the votes supplied by these
caste (or religious) organizations, and the police and administrative officials
(who surely know of what is happening through their intelligence agencies) do
not interfere out of fear of the wrath of their political masters.

On
the other hand, the Indian Judges do not have to face elections, and hence have
no need to please these feudal caste organizations. Accordingly, in the above decision the Indian
Supreme Court held that in cases of ‘honour’ killing there must be a mandatory
death sentence for the perpetrators of such crimes, and the police and
administrative officials who did not prevent them must be immediately
suspended. This decision raised a hue
and cry among the caste organizations, but has been widely acclaimed by the
enlightened section of Indian society.

The U.S. Supreme Court did not have to
play a role in transforming a feudal society into a modern one. The U.S. was already a modern society,
and the U.S. Supreme Court had only to
perform two basic functions. (1) To help
complete the unfinished tasks set by the American Founding Fathers of creating
a truly democratic society with liberty and equality. Brown is a good example how the U.S.
Supreme Court boldly performed this task by doing away with the injustices to
the black man. Miranda was another. (2) To resolve some of the major problems in
a modern society. Griswold and Roe were
important decisions in this connection.
Great Judges like Justices Holmes, Brandeis, Frankfurter, Black, Douglas,
Brennan, and Sandra Day O’Connor played an important role in this connection by
their vision and intellect.

Cases
in the U.S. Supreme Court are decided by all 9 Judges sitting together, and
there are no division benches as in the Indian Supreme Court. Since U.S. Supreme Court Judges have a life
tenure (unlike Indian Supreme Court Judges who retire at 65), and since most
Judges in the higher Courts broadly have a stable judicial philosophy (e.g.
Justices Scalia and Clarence Thomas will almost always be strict
constructionists and believers in the ‘original intent’ theory), it follows
that the approach of the U.S. Supreme
Court (that is, its majority) is broadly stable and consistent for long periods
of time. Thus, ‘economic due process’
lasted for a whole third of the 20th century, while the liberalism
of the Warren Court
lasted throughout his tenure as Chief Justice.
In the Burger and Rehnquist Courts an intermediate philosophy prevailed,
while about the present U.S. Supreme Court it is too early to say how it will
be regarded by history. Its decisions are often by a 5-4 majority, which shows
the deep divide among the present Judges, e.g. in the Affordable Healthcare
case.

The
Indian Supreme Court, while conservative in the initial years, had later a
burst of judicial activism through the social philosophies of Justice
Gajendragadkar, Krishna Iyer, P.N. Bhagwati, etc. who in the garb of
interpretation of Articles 14, 19 and 21 of the Indian Constitution created a
host of legal norms by judicial verdicts.

It
may be noted that Part III of the Indian Constitution enumerates certain
Fundamental Rights which are enforceable e.g. freedom of speech, liberty,
equality, freedom of religion, etc. On
the other hand Part IV called the Directive Principles of State Policy contain
certain socio-economic ideals e.g. right to work, to education, to a living
wage, to health etc. which though unenforceable are ideals which the State is
directed to strive for. Though Article
37 states that these Directive Principles are unenforceable, the Indian Supreme
Court has enforced many of them often by reading them into certain Fundamental
Rights e.g. in Unnikrishan’s case the right to education was read into Article
21.

This
has on the one hand been acclaimed by a section of Indian society as the
judiciary’s enlightened response to the social and economic situation prevailing
in India, on the other hand it has its dangers.
When Judges start thinking they can solve all the problems in society
and start performing legislative and executive functions (because the
legislature and executive have in their perception failed in their duties), all
kinds of problems are bound to arise.
Judges can no doubt intervene in some extreme cases, but otherwise they
neither have the expertise nor resources to solve major problems in society. Also, such encroachment by the judiciary into
the domain of the legislature or executive will almost invariably have a strong
reaction from politicians and others.
The politicians will then step in and try to curb the functioning, or
even the independence, of the judiciary (as President Franklin Roosevelt sought
to do when the conservative Court kept invalidating his New Deal legislation).

“Judges
must know their limits and not try to run the government. They must have modesty and humility, and not
behave like emperors. There is broad
separation of powers under the Constitution, and each organ of the State – the
legislature, the executive and the judiciary – must have respect for each other
and must not encroach into each other’s domains”.

The
judgment quoted Justice Frankfurter’s dissenting opinion in Trop Vs.. Dulles, 356 U.S. 86 where it was said :

“All
power is, in Madison’s
phrase, of an encroaching nature. Judicial
power is not immune against this human weakness. It also must be on guard against encroaching
beyond its proper bounds, and not the less so since the only restraint upon it
is self-restraint”.

In
the Indian Supreme Court most Judges sit in 2 Judge benches, but the verdict of
that 2 Judge bench is regarded as the judgment of the Supreme Court (unless
overruled by a larger bench). Since
Judges have their own judicial philosophies this often results in the Supreme
Court speaking in differing voices, which often leads to inconsistency.

Reservations
have been expressed in many quarters about several verdicts of the Indian
Supreme Court as it is perceived by some that they have grossly violated the
principle of separation of powers.
Criticism has in particular been made against the decisions in the
Judges Cases (Supreme Court Advocates on
Record Association Vs. Union of India AIR 1994 SC 268 and In Re Presidential Reference, AIR 1999 SC
1) on the ground that these decisions have practically substituted Article
124(2) of the Constitution by introducing a Collegium system nowhere envisaged
by the Constitution. (See article of Lord Cooke entitled ‘Where Angels Fear to
Tread’ in the book ‘Supreme but not Infallible’).

In
the opinion of the writer many of these decisions may require reconsideration.

Conclusion about Judicial Activism

My
own view is that while judicial activism may be a good thing on certain special
occasions, there should not be too frequent use of it. Where to draw the line
is, of course, sometimes a difficult question to answer.

In
Divisional Manager vs. Aravali Golf Course a bench of which I was a member
advocated judicial restraint by court.

However,
in certain cases I (along with a brother/sister Judge) resorted to activism.
Some examples are (1) In Budhadev Karmaskar vs. State of West Bengal, Crime
Appeal 135/2010 a bench of which I was the senior member directed the
government to try to rehabilitate sex workers. In India there are hundreds of thousands
of them. These women enter the flesh trade not because they enjoy it but
because of abject poverty. Hence we directed the Central and State Governments to prepare schemes for
giving some technical training to these sex workers so that they can earn their
bread not by selling their bodies but by
some technical skills, and we formed a committee headed by a senior Supreme
Court lawyer for overseeing this. This case is still being heard from time to
time even after my retirement in 2011 by another bench.

(2) In Aruna Shanbang vs. Union of India
we declared passive euthanasia valid, but subject to some restrictions. We did
this because often when a person goes into come and is on life support in
hospital the relatives cannot go on paying for the hospital expenses, although
the doctors have declared that the patient will not come out of the coma.

(3) In
M.K. Balakrishnan v. Union of India we directed formation of a Water Committee
to do scientific research for finding out ways of solving the grave and
widespread water shortage problem in India.

These
orders were passed because of pressing needs.

However,
pressing need should not be a ground for ignoring the statutory or
constitutional provisions, and hence I have grave reservations about several
decisions e.g. the Supreme Court Advocates on Record case, 1994 (The Second
Judges case).

The
law should have some stability and predictability. The burst of judicial
activism by some Indian judgments in recent decades is often mind boggling, and
is a negation of this requirement. The time has come when a vigorous debate
should be held by jurists on this subject.

***************

[1]
Separation of Power has been held by the Supreme Court to be a basic feature of
the Constitution vide State of West
Bengal v. Committee for Protection Democratic Rights, AIR 2010 SC 1476

[19]
See, for instance, United States v. Butler, 297 US 1 (1936) which dealt with
the Agricultural Adjustment Act, and Carter
v. Carter Coal Company, 298 U.S.
238 (1936) which struck down legislation which sought to regulate the coal
manufacturing industry in the US.

[21]
The exact nature of such switch, and the reasons for doing so, still remain
clouded in suspicion. There exists some evidence to prove that the bill was
sought to be passed in the senate after Roberts,
J. had decided to change his stance from the laissez-faire doctrine that had
hitherto prevailed.

[22] A
fact that was noticed by, and commented upon by other judges, notably
Sutherland, J., whose minority judgment contained a strong, albeit veiled,
rebuke to Roberts, J.

[27]
See judicial decisions that said that the due process guarantee contained
within the 14th amendment did not specifically contain the
protections of the Bill of Rights in the U.S. Constitution vis-à-vis state
action. Hurtado v. California, 110
U.S. 516, (1884).

[33]
See, for instance, the case of Burron v.
Baltimore, 7 Pet. 243 (1833) which
said that the due process clause provided very little protection to persons
tried in state Courts, being modified by the case of Murrays Lessee v. Hoboken
Land and Improvement Co., where it
was definitively stated that all branches of the Federal Government were bound
by the clause.

[74] Article
45: The State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all
children until they complete the age of fourteen years.

[100]
Griffith, in his ‘The Politics of the Judiciary’ has shown that the values
which the judges esteem are implemented in their judgments.

[101]
Until 1932 the tort of negligence did not exist in English Law. In the modern
era of mass production by huge cartels and business firms, and mass
consumerism, this position had to change, but this change was not brought about
by Parliament but by the decision of
House of Lords in Donoghue v. Stevenson. Thus the judiciary proved to be
more sensitive to social pressure then the legislature